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.”
Repost of an email from Fred Millar [Editor: Dr. Fred Millar is a policy analyst, researcher, educator, and consultant with more than three decades of experience assessing the risks associated with transporting hazardous materials. More about Fred here on p. 3 of his Comment on Valero Benicia’s crude by rail proposal. – RS]
NEW REGULATIONS: DOT Canada joint announcement – Comments and notes
1. The US/Canada announcement of harmonized new safety regulations for trying to prevent Crude by Rail disasters falls far short of what is needed and yields another clear indicator of how industry lobbying weakens efforts for any significant and effective government regulation.
Senator Cantwell [D-WA] has bluntly stated: “This new DOT rule is just like saying let the oil trains roll. It does nothing to address explosive volatility, very little to reduce the threat of rail car punctures, and is too slow on the removal of the most dangerous cars. It’s more of a status quo rule than the real safety changes needed to protect the public and first responders.”
2. Safety-minded DOT staffers have often in public forums and in regulatory documents pointedly highlighted important safety issues with High Hazard Flammable Trains [HHFT]. But DOT Secretary Foxx’s ongoing rollouts of painfully limited regulatory proposals keep coming even after the staff’s own public statements [e.g., by Karl Alexy] and their regulatory documents. For example, the July 2014 Draft Regulatory Impact Analysis clearly predicts an alarming level of expected ongoing derailment disasters, but this is apparently a level which industry considers an acceptable cost of doing business when the current basic industry practices are not significantly altered.
The most clearly disappointing aspects of the new Final Rule involve:
Train speed: these high allowed speed limits [which the railroads have already adopted voluntarily] would ensure ongoing derailment punctures of even the newer tank cars.
Routing: simply extending the existing ineffective and secret rail urban routing regime to HHFTs means railroads are free to keep our cities and sensitive environmental areas at high risk, and keeping the public in the dark about those risks.
Retrofit schedules extending in some cases ten years, to 2023.
Volatility – not addressed at all.
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Intense negotiations have occurred behind the scenes regarding what safety measures industry and governments can agree are feasible and economically practical, e.g., regarding how short regulators can make a mandated deadline for costly safety retrofits of the approximately 100,000 existing inadequate tank cars in the mile-long High Hazard Flammable Trains.
3. A previous rail car safety crisis illuminates the political nature of the regulatory decisions as to what safety measures will be considered feasible. In the 1970s, US DOT at first ordered the manifestly unsafe pressurized tank cars [more robust than the DOT-111s ], carrying cargoes such as chlorine, ammonia and propane, to be retrofit with various upgrades within two to four years. When the tank cars kept exploding, however, with one 1977 blast in Waverly TN killing 16 ill-trained firefighters, DOT hastily shortened the mandated retrofits deadlines to one to two years.
4. These long-overdue HHFT regulations that US DOT rolls out [nearly 2 full years after the Lac-Megantic Quebec tragedy with 47 dead] are designed to look vigorous, but will not deliver significant improvements in any of the most-needed safety measures to prevent ongoing disasters:
Volatility reduction – Obama already punted on this to 3 ND regulators, awash in oil money
Emergency response capabilities
Tank car design
Train Speed
Risk-reduction routing
Risk Information to the public – as NTSB has pointed out should be a key element in undergirding serious safety measures and emergency response planning
5. The context here is notable: ongoing fireball disasters with Crude Oil Trains in Canada and the US, with the newest design of tank cars, the CPC-1232s, releasing their contents in several.
Even an eminently railroad-friendly commentator in the rail industry’s own Trains Magazine – Fred Frailey – is frustrated by railroads’ failure to decisively to prevent the spate of CBR disasters… He says the North American public is rightly alarmed by the massive crude oil trains as they see that “Railroads aren’t good at keeping them on the tracks.” [May 2015 issue]
Similar railcar disaster crises in the past alarmed the public and prompted Congress and regulators to beef up safety:
2008 Chatsworth collision disaster led Congress – finally — to impose a costly Positive Train Control collision-avoidance system on the US rail industry, after US DOT declined to act for 20 years https://www.youtube.com/watch?v=k6Lg8YosjgY
Many tank cars that were built starting in the 1960s were designed to carry as much cargo as possible, which meant thin shells that could easily puncture or rupture in a derailment. While economical, the designs proved disastrous in a number of horrific incidents involving toxic and flammable gases.
The deaths of numerous railroad workers and emergency responders in the 1970s spurred regulators and the industry to improve the safety of the pressurized tank cars used to transport “all kinds of exotic materials that cause battlefield-like damage,” NTSB official Edward Slattery told The Associated Press in 1978.
Six weeks after 16 people were killed in Waverly, Tenn., including the town’s police and fire chiefs, when a tank car filled with propane exploded following a train derailment, the NTSB convened an emergency hearing in Washington. Nearly 50 witnesses testified, including mayors, emergency responders, railroad executives, private citizens and a young state attorney general from Arkansas named Bill Clinton.
“Every month in which unprotected tank cars ride the rails increases the chances of another catastrophic hazardous-materials accident,” said James King, then the NTSB’s chairman, in opening the hearing on April 4, 1978.
By the early 1980s, pressurized cars were equipped with puncture-resistant shields, fire-resistant thermal insulation and devices to help the cars stay coupled in derailments, reducing the risk that they could strike and puncture each other.
An industry study found that the retrofits made a big difference within six years. Punctures of the car’s heads – the round shields at each end of the car – fell by 94 percent. Punctures in the car’s shell – its cylindrical body – fell 67 percent. Ruptures due to fire exposure fell by 93 percent.
Additional changes in railroad operating practices, track maintenance and training for emergency response personnel reduced the frequency and severity of accidents.
The non-pressurized DOT-111A, however, was left mostly unaltered. Upgrades probably weren’t necessary when the cars were carrying benign products such as corn syrup or vegetable oils, but regulators also allowed the cars to transport flammable and corrosive materials.
In accident after accident over the next three decades, the NTSB repeatedly referred to the cars’ shortcomings.
“The inadequacy of the protection provided by DOT-111A tank cars for certain dangerous products has been evident for many years,” the NTSB wrote the Federal Railroad Administration in a letter dated July 1, 1991.
The post-9/11 crisis in 2008 – new terrorism concerns with most dangerous Poisonous by Inhalation cargoes that could be used as weapons by terrorist. This was a response to four major 1996-2005 chlorine and ammonia releases in Minot ND, Graniteville SC, Alberton MT, and Macdona TX.
The 2008 DOT Notice of Proposed Rulemaking demonstrates the post-Reagan era constricting requirements for regulatory agencies to do extensive cost-benefit analysis justifying the safety benefits of imposing additional costs to industry. https://www.federalregister.gov/articles/2008/04/01/E8-6563/hazardous-materials-improving-the-safety-of-railroad-tank-car-transportation-of-hazardous-materials
Federal Railroad Administration’s Action Plan for the Safe Transportation of Energy Products (STEP)
In response to train accidents in the United States and Canada involving tank cars carrying crude oil, the U.S. Department of Transportation (DOT), including the Federal Railroad Administration (FRA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA), continue to pursue a comprehensive, all-of-the-above approach in minimizing risk and ensuring the safe transport of crude oil by rail.
Over the past year, FRA and PHMSA have undertaken nearly two dozen actions to enhance the safe transport of crude oil. This comprehensive approach includes near and long-term steps such as: launching “Operation Classification” in the Bakken region to verify that crude oil is being properly classified; issuing safety advisories, alerts, emergency orders and regulatory updates; conducting special inspections; aggressively moving forward with a rulemaking to enhance tank car standards; and reaching agreement with railroad companies on a series of immediate voluntary actions including reducing speeds, increasing inspections, using new brake technology and investing in first responder training.
Here is a chronology of actions DOT, PHMSA and FRA have pursued over the past year(s):
April 17, 2015
FRA and PHMSA issued:
FRA Emergency Order No. 30, Notice No. 1: Establishing a Maximum Operating Speed of 40 mph in High-Threat Urban Areas for Certain Trains Transporting Large Quantities of Class 3 Flammable Liquids www.fra.dot.gov/eLib/Details/L16319
FRA/PHMSA Safety Advisory on Information Requirements Related to the Transportation of Trains Carrying Specified Volumes of Flammable Liquids: www.fra.dot.gov/eLib/Details/L16321
FRA Safety Advisory 2015-01: Mechanical Inspections and Wheel Impact Detector Standards for Trains Transporting Large Amounts of Class 3 Flammable Liquids www.fra.dot.gov/eLib/Details/L16322
Repost from Emergency Management Magazine [Editor: An excellent online comment appears following this article: “Wultcom” writes, “As always it is heartening to see how first responders rise to the occasion to protect us all. If only such heroism rubbed off just a little on the railroad industry. The creation of courses for first responders is praiseworthy. But it does create a false sense of security, for when Bakken crude explodes, the force of the fire is too great to allow firefighters to get anywhere near it. The first duty of government is to protect citizens, not shareholders. The rail industry takes advantage of lax regulators, pro-business governments, frail labor unions, and our desire for oil independence to roll the dice on safety. They run 150 ton tank cars on 8000 foot trains with skeletal crews, well dictated by the profit motive. An alliance of railway workers, environmentalists, and blast zone citizens can force a safer method of transporting crude oil.” – RS]
The Ticking Rail Car: First Responders Are Preparing for the Worst
Railways are now carrying highly explosive Bakken crude oil, making emergency managers’ jobs even tougher.
By Jim McKay | April 10, 2015
Millions of people are potentially at risk from trains like this one carrying Bakken crude oil. Flickr/Brewbooks
Emergency managers have been asked in recent years to do a lot more with fewer resources. That job got even tougher with the advent of oil shipments from the Bakken shale region of North Dakota via rail around the country.
Bakken is obtained by hydraulic fracking and horizontal drilling, which has increased since 2000 and can be highly explosive. And there have been several train derailments recently, including one in Lac-Megantic, Quebec, in July 2013 that killed 47 people.
In the U.S., a train carrying Bakken crude oil derailed in West Virginia on Feb. 16, 2015, sending orange flames skyward for days. There have been other derailments, and there’s concern of a scene like the one in Quebec happening in a major U.S. city, including those in Pennsylvania. A report by PublicSource said 1.5 million people are potentially at risk if a train carrying crude oil derails and catches fire there.
Emergency managers are concerned and doing what they can to mitigate a derailment and possible explosion in their backyards. There’s training available but questions remain: Do emergency managers have all the information they need? Can one locale handle an explosion caused by a 30,000-gallon oil tanker incident?
“From a people standpoint, the worst-case scenario is if you have one or more of these cars breach and start on fire,” said Rick Edinger, assistant chief of the Chesterfield County, Va., Fire and EMS Department and a hazardous materials expert. “There’s an ongoing debate about how volatile crude oil is. The feds and industry are coming to realize now that it really depends on where the oil comes from.”
Because of that and other reasons, it’s important to understand the nature of the product, according to Robert Gardner, technological hazards coordinator for the Maine Emergency Management Agency. Emergency managers should study lessons learned and best practices and have safety data sheets. This information should be part of a risk assessment that lets first responders develop agency-specific response protocols that ensure responder safety and accounts for those exposed to potential fire.
Regional planning groups such as local emergency planning committees should review the routes that trains may use and identify sensitive receptors like water supplies, fisheries or agricultural areas.
Good to Know
There’s ongoing debate about what information communities and emergency managers should know about train routes and shipments of crude.
“Flow studies have been around for a long time and that’s an old tool that could be applied to figure out what’s going through your community,” Edinger said. “You may not have it down to the gallon and the day, but you have a great sense of what’s coming through and frankly, from a hazmat standpoint, I don’t need to know a specific time, I just need to know the worst-case scenario.”
Gardner said that in terms of actual shipments, there’s never enough information available. “We may know when a unit over a million gallons may be coming or where they are traveling, but those trains carrying fewer than 30 cars become unknowns,” he wrote in an email.
Some railroads have systems in place that allow for real-time knowledge of what any particular train may be carrying and the tanks’ location in the train.
Gardner said planning for Bakken crude oil transport is no different from any other hazardous material or even natural gas because you have an assessment and understand what you’re planning for and the role of those involved. But he acknowledged that the volume of the product is a concern.
The biggest concern for many is that one or more cars loaded with crude breach can start a fire. “Once you get past anything the size of a 9,000-gallon oil tanker, very few departments have the resources or capability to mitigate anything bigger,” Edinger said. “If you’re talking about a 30,000-tank car incident, even that would be beyond the capabilities of most departments in the initial stages, anyway.”
New federal rules instituted last year require carriers to notify state emergency response commissions about the transport routes of cars carrying at least 1 million gallons of crude from Bakken. But some emergency managers say that doesn’t go far enough and doesn’t include the typical load of 30,000 gallons.
Training is available for mitigating such a circumstance, but managing the volume of an incident that size could be daunting, Edinger said. “With the exception of a couple of departments, most can’t afford to stock and maintain the resources you would need to even approach doing something with one of these incidents.”
Gardner said the local Maine railroads have worked to educate first responders on rail safety. “This is of particular importance as rail employees have the specific knowledge of cars and engines that not all responders have, but need [in order] to have a safe response.”
Need Some Help
Gardner said it would help if the railroads could assist with the cost of the “gap pieces” of response equipment that have been identified as needed through the assessments. “It would be an immense help to many of the small volunteer agencies that we have in Maine and throughout the nation,” he wrote.
An examination of the tank car fleet that carries flammable liquids may be necessary as well. Canada has banned certain cars that are known to be unsafe in crash situations, but the U.S. has lagged. Part of the reason is the price. It would cost up to $1 billion to retrofit all of the 300,000 DOT-111 tank cars in use and take years.
“The dialog is going in a good direction,” Edinger said. “There seems to be agreement within public safety and the rail industry that we can do better with the construction of cars and that will improve, and perhaps prevent some incidents from happening.”
