Tag Archives: McClatchy

States Step Up Scrutiny of Oil Train Shipments

Repost from GOVERNING The States and Localities

States Step Up Scrutiny of Oil Train Shipments

Some states are looking to prevent more derailments and spills, but the freight industry doesn’t want more regulation.
 By Daniel C. Vock | August 26, 2015
In 2014, several CSX tanker cars carrying crude oil derailed and caught fire along the James River near downtown Lynchburg, Va. (AP/Steve Helber)

When it comes to regulating railroads, states usually let the federal government determine policy. But mounting concerns about the safety of oil trains are making states bolder. In recent months, Oregon, Pennsylvania and Washington state have taken steps to strengthen oversight of the freight rail industry.

The three join several other states — mostly led by Democrats — in policing oil shipments through inspection, regulation and even lawsuits. Washington, for example, applied a 4-cent-per-barrel tax on oil moved by trains to help pay for clean-ups of potential spills. The new law also requires freight rail companies to notify local emergency personnel when oil trains would pass through their communities.

“This means that at a time when the number of oil trains running through Washington is skyrocketing, oil companies will be held accountable for playing a part in preventing and responding to spills,” said Democratic Gov. Jay Inslee when signing the measure this spring.

The flurry of state activity comes in response to a huge surge in the amount of oil transported by rail in the last few years. Oil from the Bakken oil fields in North Dakota and nearby states must travel by train to refineries and ports because there are few pipelines or refineries on the Great Plains. The type of oil found in North Dakota is more volatile — that is, more likely to catch on fire — than most varieties of crude.

Public concerns about the safety of trains carrying oil have increased with the derailments in places like Galena, Ill.; Mt. Carbon, W. Va.; Aliceville, Ala.; Lynchburg, Va.; Casselton, N.D.; and especially Lac-Megantic, Quebec, where 47 people died in 2013.

Federal regulators responded to these incidents by requiring railroads to upgrade their oil train cars, to double check safety equipment on unattended trains, and to tell states when and where oil trains would be passing through their borders. This last requirement was hard won. This summer, the Federal Railroad Administration tried to encourage states to sign nondisclosure agreements with railroads about the location of oil trains. After several states balked, the agency relented.

California, Louisiana, New Jersey, Ohio and Oklahoma have all signed nondisclosure agreements, while Idaho, Illinois, Montana, North Dakota, Washington and Wisconsin have refused to do so, according to the Reporters Committee for Freedom of the Press.

A Maryland judge earlier this month ruled against two rail carriers, Norfolk Southern and CSX, that wanted to block the state’s environmental agency from releasing details of their oil shipments. The railroads have until early next month to decide whether to appeal.

“The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret,” wrote reporter Curtis Tate of McClatchy, one of the news organizations that requested the records, “but it is the first court decision recognizing the public’s right to see them.”

Many states want this information so that fire departments and other emergency personnel can prepare for a potential derailment. California passed a law last year imposing clean-up fees on oil shipped by rail. The railroad industry challenged the law in court, but a judge ruled this summer that the lawsuit was premature. Minnesota passed a similar law last year, and New York added rail inspectors to cope with the increase in oil train traffic. A 1990 federal law lets states pass their own rules to prepare for oil spills, as long as those rules are at least as rigorous as federal regulations.

In Pennsylvania, which handles 60 to 70 oil trains a week, Democratic Gov. Tom Wolf asked a University of Delaware expert to help to improve safety of oil trains traveling through the state. The professor, Allan Zarembski, produced 27 recommendations for the state and the railroads. He called on the state to improve its inspection processes of railroad tracks, particularly for tracks leading into rail yards, side tracks and refineries that often handle oil trains. The professor also encouraged the state to coordinate emergency response work with the railroads and local communities.

Zarembski’s suggestions for the railroads focused on how they should test for faulty tracks, wheel bearings and axles. Most major derailments in recent years were caused by faulty track or broken equipment, not human error, he noted in his report.

Maryland judge orders railroads to release oil train reports

Repost from McClatchyDC

Maryland judge orders release of oil train reports

• Case marks first time railroads have lost on the issue in court
• Judge not persuaded that release would harm security, business
• Companies that filed 2014 lawsuit have until Sept. 4 to appeal

By Curtis Tate, August 17, 2015
Tank cars loaded with crude oil head east at Hurricane, W. Va., in May 2014. A Maryland judge has ordered the release of oil train reports to McClatchy and other news organizations. West Virginia and a handful of other states agreed to keep the the reports confidential.
Tank cars loaded with crude oil head east at Hurricane, W. Va., in May 2014. A Maryland judge has ordered the release of oil train reports to McClatchy and other news organizations. West Virginia and a handful of other states agreed to keep the reports confidential. Curtis Tate – McClatchy

WASHINGTON – A Maryland judge rejected two rail carriers’ arguments that oil train reports should be withheld from the public, ordering them released to McClatchy and other news organizations that sought them.

The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to see them.

The U.S. Department of Transportation began requiring in May 2014 that railroads inform states of large shipments of crude oil after a series of derailments with spills, fires, explosions and evacuations. Since February, six more major oil train derailments have occurred in North America.

Nonetheless, some railroads have continued to press their case that the reports should be exempt from disclosure under state open records laws. Most states shared the documents anyway, and Pennsylvania and Texas did so after McClatchy appealed. Maryland is the only state that was taken to court after it said it would release the reports.

Norfolk Southern and CSX sued the Maryland Department of the Environment in July 2014 to stop the state agency from releasing the records to McClatchy and the Associated Press. They have until Sept. 4 to appeal the decision, issued Friday by Judge Lawrence Fletcher-Hill of the Circuit Court for Baltimore City.

Both companies, which transport crude oil to East Coast refineries concentrated in Delaware, Pennsylvania and New Jersey, said they would review the decision.

Dave Pidgeon, a spokesman for Norfolk Southern, said the company would “respond at the appropriate time and venue.”

Melanie Cost, a spokeswoman for CSX, said the railroad “remains committed to safely moving these and all other shipments on its network.”

The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to access them.

In his 20-page opinion, Fletcher-Hill was not persuaded by arguments that releasing the oil train reports would harm the railroads’ security and business interests. He also dismissed the relevance of the U.S. Department of Transportation’s May final rule addressing the safety of oil trains. The companies had argued that the final rule supported their claims.

He also ordered the companies to pay any open court costs.

In a statement, Maryland Secretary of the Environment Ben Grumbles said the agency was pleased with the ruling and that it is “committed to transparency in government.”

Rail transportation of Bakken crude oil, produced through hydraulic fracturing of shale formations in North Dakota, has grown exponentially in the past five years. However, a series of fiery derailments, including one in Quebec in 2013 that killed 47 people, have raised numerous concerns about public safety, environmental protection and emergency planning and response.

U.S. Transportation Secretary Anthony Foxx issued an emergency order on May 7, 2014, that required any railroad shipping 1 million gallons or more of Bakken crude oil through a state to inform that state’s emergency response commission what routes the trains would take and which counties they would cross, as well as provide a reasonable estimate of how many trains to expect in a week.

Beginning in June 2014, McClatchy submitted open records requests in 30 states for the oil train reports, including Maryland.

McClatchy was able to glean some of the details in the Maryland report through a Freedom of Information Act request to Amtrak, which owns part of Norfolk Southern’s oil train route in the state. The subsequent release of oil train reports in Pennsylvania revealed more about such operations in Maryland.

On Monday, Pennsylvania Gov. Tom Wolf released an 84-page assessment of oil train safety in the state, which examined derailment risk, tank car failures and regulatory oversight. Some Maryland lawmakers have called for the state to perform a similar assessment.

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

— 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.”

New oil-train safety rules will put public back in the dark

Repost from the Bellingham Herald

New oil-train safety rules will put public back in the dark

By Curtis Tate, McClatchy Washington Bureau, May 1, 2015

WASHINGTON — Details about rail shipments of crude oil and ethanol will be made exempt from public disclosure under new regulations announced by the U.S. Department of Transportation on Friday.

The department will end its requirement, put in place a year ago, that required railroads to share information about large volumes of Bakken crude oil with state officials.

Instead, railroads will share information directly with emergency responders, but it will be exempt from the Freedom of Information Act and state public records laws, the way other hazardous materials such as chlorine and anhydrous ammonia are currently protected.

After a CSX train carrying Bakken crude oil derailed and caught fire in Lynchburg, Va., on April 30 last year, federal regulators required railroads to notify emergency response agencies of shipments of 1 million gallons or more of Bakken crude oil through their states.

The railroads complied, but asked states to sign agreements to keep the information confidential. Some agreed, but most refused, citing a conflict with their open records laws.

Using FOIA and state public records laws, McClatchy last year obtained full or partial data on Bakken rail shipments from 24 states. Another five states denied McClatchy’s requests.

CSX and Norfolk Southern, the dominant eastern railroads, sued Maryland to block the state from releasing its information to McClatchy. A trial is scheduled for next month.

McClatchy, however, was able to obtain some of the information about the Maryland shipments by going to Amtrak. Norfolk Southern uses a portion of the passenger railroad’s Northeast Corridor for its crude oil trains.

Last fall, the rail industry’s leading trade groups quietly asked the Transportation Department to drop the requirement.

In pretrial documents in the Maryland lawsuit, the railroads’ lawyers maintain that disclosure of the information – including the routes the trains take and the counties through which they pass – could compromise security, erode the companies’ competitive edge and harm their customers.

As of October, the Federal Railroad Administration disagreed. It said that information about the Bakken shipments was neither security nor commercially sensitive and was not exempt from public release. It also said it would continue the reporting requirement.

But on page 242 of the 395-page final rule the department published on Friday, it appeared that the railroads got their wish.

Starting next year, emergency responders will have access to information about shipments of all types of crude oil, not just Bakken, ethanol and other flammable liquids. The volume threshold will also be lowered to 20 or more cars of flammable liquid in a continuous block, or 35 or more cars dispersed throughout a train.

The shipments, however, will be classified as “security sensitive” and details about them shielded from the public.

“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.”