SEATTLE (AP) — Environmental groups sued the U.S. Department of Transportation on Thursday over the shipment of volatile crude oil in older railroad tank cars.
Accident investigators have complained for decades that the cars are too easily punctured or ruptured when derailed, leading to spills.
The lawsuit filed by the Sierra Club and ForestEthics says the agency failed to respond to a legal petition the groups filed in July. That petition sought an emergency order to prohibit crude oil from the Bakken region of North Dakota and Montana and elsewhere from being carried in older tank cars, known as DOT-111s.
A spokesman with the Department of Transportation, Kevin Thompson, declined to comment, citing the pending litigation.
Since 2008, there have been 10 significant derailments in the U.S. and Canada in which crude oil has spilled from ruptured tank cars. The worst was a runaway oil train that exploded in the Quebec town of Lac-Megantic a year ago, killing 47 people.
The federal government in late July proposed rules that would phase out tens of thousands of older tank cars that carry crude oil and other highly flammable liquids.
But that process could take several years, and in the meantime, shipments of crude oil in older rail cars are putting small towns and major cities along the rail lines at risk, the groups said.
“That’s just far too long given the risks,” said Patti Goldman, a lawyer with Earthjustice, which is representing the groups.
The groups had asked the 9th U.S. Circuit Court of Appeals to order the agency to respond to its July petition within 30 days.
Richmond: Judge tosses out suit seeking to stop crude oil shipments by rail
By Tom Lochner, Contra Costa Times, 09/05/2014
SAN FRANCISCO — A lawsuit by environmental groups seeking to stop shipments of crude oil by rail to Richmond was tossed out by a judge Friday on the grounds that it was filed too late.
Communities for a Better Environment, Asian Pacific Environmental Network, Sierra Club and Natural Resources Defense Council sued the Bay Area Air Quality Management District in March. The suit involved a Feb. 3 permit issued to Kinder Morgan to receive crude oil by rail at its Richmond trans-loading facility along the BNSF Railway tracks off Garrard Boulevard, where the oil is transferred to trucks.
Kinder Morgan Material Services LLC and Kinder Morgan Energy Partners LP were co-defendants.
Tanker cars sit on railroad tracks near the Shell Refinery in Martinez, Calif. on Monday, May 6, 2013. The Bay Area’s five refineries have moved toward acquiring controversial Canadian tar sands crude through rail delivery. (Kristopher Skinner/Bay Area News Group)
The Feb. 3 permit amended a July 2013 permit that allowed Kinder Morgan to operate a denatured ethanol and crude oil bulk terminal. Ethanol is a volatile liquid derived from grain that is used as fuel or as a fuel additive, among other uses. The Feb. 3 amendments included modified testing procedures and standards for trucks. But the judge applied the 180-day statute of limitations to when the July 2013 permit was issued.
Both permits were issued ministerially and without environmental review.
Kinder Morgan has declined to say where the trucks are headed, citing confidentiality, but they are widely believed to be bound for the Tesoro Golden Eagle refinery in Martinez. Tesoro was an intervenor in the lawsuit, which had sought a preliminary injunction against further crude oil operations at Kinder Morgan and suspension of the air district permit pending a full review under the California Environmental Quality Act.
Earlier this year, a Tesoro spokeswoman confirmed the Martinez facility receives between 5,000 and 10,000 barrels per day of Bakken crude, a light, flammable variety named after oil fields in North Dakota and adjacent areas. That amount is equivalent to about two to four trains per month, the spokeswoman said, and is received through a “third-party facility” that she did not identify.
Air district counsel Brian Bunger hailed Friday’s decision as “a correct application of the law.”
“We’re pleased with the outcome,” Bunger said.
Air district spokeswoman Lisa Fasano said late Friday that “The Air District will continue to work with state legislators and policy makers regarding where and how crude oil is transported into the region for refining.”
But Earthjustice blasted the dismissal, saying it allows Kinder Morgan and the air district to “get away with opening (Richmond) to crude oil transport by rail without public notice.”
“This is just how the agencies and industry wins — hide the information, make the change under the cover of night, and hope people don’t notice while the clock winds down on any hope to stop these dangerous and callous developments,” Earthjustice attorney Suma Peesapati said in a news release. “What’s worse is this emboldens other companies to do the same thing and hide their switch to crude oil.”
Kinder Morgan spokesman Richard Wheatley said his company is “satisfied with the outcome.”
“It was a well-reasoned and thoughtful decision by the judge,” Wheatley said in an email Friday. “We look forward to continuing to serve our customers safely and reliably.”
Tesoro did not immediately respond to a request for comment.
Responding by email Friday, Contra Costa County Supervisor John Gioia, who sits on the air district board, said: “Despite this case’s dismissal, I remain concerned about the safety of transporting Bakken Crude and believe it’s important for the Federal Government to strengthen safety standards.”
BREAKING NEWS: Judge says suit to stop Richmond oil shipments filed too late
By Bob Egelko, September 5, 2014
A judge on Friday dismissed a lawsuit by environmental groups over shipments of volatile crude oil to the Richmond rail terminal, saying they had waited too long to challenge regulators’ approval of the project – approval they discovered only after the deadline for going to court.
Trains from the Midwest have been carrying the oil to the terminal of the Kinder Morgan energy company since early February. The environmental law firm Earthjustice learned of the shipments from news reports in mid-March and sued later that month, saying air-quality regulators should have conducted an environmental study of the potential for toxic emissions as well as the explosions that have occurred elsewhere.
But the Bay Area Air Quality Management District had decided in July 2013 to let Kinder Morgan receive crude oil instead of ethanol, which had been delivered to the terminal since 2009.
Acting under its legal authority, the district made no public announcement of the new permit, but – according to Friday’s ruling – its action started the clock ticking on a 180-day deadline for a lawsuit.
That deadline expired two months before the suit was filed, said San Francisco Superior Court Judge Peter Busch.
“I understand the deep concern,” Busch said in a courtroom filled with opponents of the shipments, some of whom wore “Stop Crude by Rail” stickers on their shirts. But he said courts must follow “the Legislature’s determination of the appropriate time period to impose finality.”
Lawmakers’ decision
In setting that firm timetable, he said, “the Legislature contemplated circumstances where the public wouldn’t know” a project had been approved.
Communities for a Better Environment, the Asian Pacific Environmental Network, the Sierra Club and the Natural Resources Defense Council filed the suit.
Their lawyer, Suma Peesapati of Earthjustice, argued that the 180-day timeline should have started much later, either when the public learned of the oil shipments or when Kinder Morgan halted them for two weeks to bring in oil trucks with stronger protections against vapor release.
According to documents now available, Peesapati told the judge, the district and the energy company had studied the project for a year and initially agreed that it was likely to harm air quality, a conclusion that would have required a full environmental study and public input. Then, she said, the district reversed course and “cooked the books” to cover its tracks.
“There was a bait and switch,” Peesapati said. “The public had no way of knowing.”
5 months of tests
Lawyers for the district and Kinder Morgan said they had acted safely and legally. John Lynn Smith, the company’s lawyer, said it conducted five months of tests before beginning the shipments, and used trucks that kept vapor releases to their levels during the ethanol deliveries.
Busch said neither the commencement of the oil shipments nor the truck substitution made significant changes in the project the air district had already approved.
Peesapati said the environmental groups would consider an appeal. The district’s approval process “was biased in favor of Kinder Morgan at every turn,” she said.
Activists form human barricade to protest crude-by-rail facility
09.04.14 | Rebecca Bowe
PHOTO BY MATTHEW GERRING
This morning [Thu/4], at 7am in Richmond, Calif., four environmental activists used U-locks to fasten themselves by the neck to the fence of an oil shipping facility operated by Kinder Morgan.
They were interlocked with another four activists, who had their arms secured with handmade lock-boxes. “I’m locked to a lock box connected to my partner, Ann, who is locked with a U-lock to the fence,” Andre Soto, of Richmond-based Communities for a Better Environment, explained by phone a little after 8am.
At that time, Soto said several Richmond police officers had been dispatched to the scene and were calmly surveying the human barricade. He wondered out loud if they would be arrested.
The environmentalists risked arrest to prevent trucks from leaving the Kinder Morgan facility for area refineries with offloaded oil shipped in by train.
Crude-by-rail transport at Kinder Morgan’s bulk rail terminal, located in the Burlington Northern / Santa Fe railyard in Richmond, is the subject of a lawsuit filed in March by Earthjustice on behalf of the Sierra Club, Communities for a Better Environment, the National Resources Defense Council, and the Asian Pacific Environmental Network.
The suit, targeting Kinder Morgan as well as the Bay Area Air Quality Management District (BAAQMD), charges that Kinder Morgan was illegally awarded a permit for crude-by-rail operations without going through a formal environmental review process, which would have necessitated public hearings and community feedback. The case asks for operations to be halted while the project undergoes review under the California Environmental Quality Act. A hearing will be held in San Francisco Superior Court at 1:30pm tomorrow.
Ethan Buckner of Forest Ethics, who was also locked to the fence, said activists were especially concerned that the crude oil being shipped into Richmond, much of which originates in North Dakota, was volatile, presenting safety concerns.
“The oil trains are … very old tank cars that are subject to puncture, and have been known to fail over and over again while carrying oil,” Buckner said. Much of the oil shipped into the Richmond transfer point by rail originates from the Bakken shale region, which has been dramatically transformed by the controversial extraction method known as fracking.
“Nobody was notified that these oil trains were going to be rolling in,” Buckner said. That morning’s protest, he added, was meant to “send a clear message to Kinder Morgan and the Air District that if we can’t count on our public agencies to protect our communities, we’re going to do it ourselves.”
In the end, none of the activists were arrested. They voluntarily unlocked themselves from the fence and left the railyard around 10am. “After three hours we decided thsat we had made our point,” Eddie Scher of Forest Ethics said afterward, speaking by phone.
Along with a group of around ten others participating in the civil disobedience action, the activists who locked themselves to the fence were affiliated with Bay Area environmental organizations including 350 Bay Area, the Asian Pacific Environmental Network, the Sunflower Alliance, the Martinez Environmental Group, and Crocket Rodeo United to Defend the Environment.
Reached by phone, Ralph Borrmann, a spokesperson for BAAQMD, said, “We have no comment on the current litigation, or any actions relating to it.” He added that more information would come out during the Sept. 5 hearing.
When the Bay Guardian asked Kinder Morgan for a comment on the matter, spokesperson Richard Wheatley responded, “You’re not going to get one. We’re not going to comment on it.” Asked for a comment on the lawsuit, Wheatley said, “We’re not going to comment ahead of that hearing. And we’re not going to comment on the protesters.”
