Using bad tank cars? Then pay a fee, Brown proposes
By Rick Rouan, June 30, 2015 11:36 PM
Sen. Sherrod Brown wants shippers using tank cars that have been linked to fiery train derailments to pay fees that would be used to reroute train tracks, train first responders and clean up spills.
Brown has proposed fees that start at $175 per car for those using the DOT-11 [sic], a tank car that federal regulators have warned hazardous-material shippers against using.
The fees would pay to clean up hazardous-material spills, to move tracks that handle large volumes of hazardous material and to hire more railroad inspectors. Brown’s bill earmarks about $45 million over three years to train first responders near rail lines that carry large quantities of hazardous material.
Earlier this year, federal regulators tightened rules on newly manufactured tank cars but did not require shippers to immediately remove the old cars.
“(The rule) probably didn’t go far enough,” Brown said on Tuesday at the site of a 2012 derailment and explosion near the state fairgrounds. “If it’s a threat to public safety, they probably need to be off the rails.”
The federal rule will phase out or require retrofitting of thousands of the oldest tank cars that carry crude oil by 2018. Another wave of the oil-carrying tankers would have to change by 2020.
Some of the tank cars that aren’t carrying crude oil would not be replaced or retrofitted until 2025.
Brown’s proposal calls for a tax credit for companies that upgrade their tank cars to the new federal standard in the next three years.
Chet Thompson, president of the American Fuel & Petrochemical Manufacturers trade association, said his organization would oppose the fee structure Brown proposed.
“We think the federal focus should be on the rail carriers and their efforts to improve track integrity,” he said. “We want to see legislation that beefs up track integrity to keep the trains on the track.”
A spokesman for the American Association of Railroads declined to comment on Brown’s proposal. The organization is appealing the new federal standard, arguing that it doesn’t do enough to require shippers to stop using the DOT-111 tank cars and should require more heat protection on the cars, spokesman Ed Greenberg said.
The cars have been involved in several fiery derailments while carrying crude oil from the Bakken shale formation in North Dakota to East Coast refineries. In July 2013, a runaway train killed 47 people and destroyed the business district in Lac-Megantic, Quebec.
And in February, a train carrying volatile Bakken crude derailed in Mount Carbon, W.Va., after it likely traveled through Columbus. The train was run by CSX, which has three tracks that carry crude oil converging in Columbus before they head toward West Virginia.
On July 11, 2012, a Norfolk Southern train slipped the rails just north of Downtown. One of the cars punctured, spilling ethanol and causing an explosion and fire. Two people were injured and about 100 people were evacuated.
The National Transportation Safety Board said a broken track caused the derailment.
“Unfortunately, that was not an isolated incident,” Brown said.
A recent analysis for Franklin County Emergency Management and Homeland Security found that crude oil represents the largest share of hazardous material transported by rail through the region, Director Mike Pannell said.
Earlier this year, the state released reports showing that 45 million to 137 million gallons of Bakken crude travel through the state each week.
Local first responders have procedures in place to handle derailments but not specific plans for every piece of track, including lines that run through residential areas, said Karry Ellis, an assistant chief in the Columbus Fire Division.
Brown’s proposal calls for the U.S. Department of Transportation to study whether first responders are prepared for flammable-liquid spills and whether longer freight trains pose a greater risk.
Information from the Associated Press was included in this story.
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.”
Battle Over New Oil Train Standards Pits Safety Against Cost
By David Schaper, June 19, 2015 3:30 AM ET
A train carrying crude oil derailed in Mount Carbon, W.Va., in February, causing a large fire that forced hundreds of people to evacuate their homes. Steven Wayne Rotsch/Office of the Gov. of West Virginia/AP
The federal government’s new rules aimed at preventing explosive oil train derailments are sparking a backlash from all sides.
The railroads, oil producers and shippers say some of the new safety requirements are unproven and too costly, yet some safety advocates and environmental groups say the regulations aren’t strict enough and still leave too many people at risk.
Since February, five trains carrying North Dakota Bakken crude oil have derailed and exploded into flames in the U.S. and Canada. No one was hurt in the incidents in Mount Carbon, W.Va., and Northern Ontario in February; in Galena, Ill., and Northern Ontario in March, and in Heimdal, N.D., in May.
Stephanie Bilenko of La Grange, Ill. (from left), Paul Berland of suburban Elgin and Dr. Lora Chamberlain of Chicago, are members of a group urging more stringent rules for the oil-carrying trains. David Schaper
But each of those fiery train wrecks occurred in lightly populated areas. Scores of oil trains also travel through dense cities, particularly Chicago, the nation’s railroad hub.
According to state records and published reports, about 40 or more trains carrying Bakken crude roll through the city each week on just the BNSF Railway’s tracks alone. Those trains pass right by apartment buildings, homes, businesses and even schools.
“Well just imagine the carnage,” said Christina Martinez. She was standing alongside the BNSF tracks in Chicago’s Pilsen neighborhood as a long train of black tank cars slowly rolled by, right across the street from St. Procopius, the Catholic elementary school her six-year-old attends.
“Just the other day they were playing soccer at my son’s school on Saturday and I saw the train go by and it had the ‘1267’, the red marking,” Martinez said, referring to the red, diamond-shaped placards on railroad tank cars that indicates their contents. The number 1267 signifies crude oil. “And I was like, ‘Oh my God.’ Can you imagine if it would derail and explode right here while these kids are playing soccer and all the people around there?”
New federal rules require stronger tank cars, with thicker shells and higher front and back safety shields for shipping crude oil and other flammable liquids. Older, weaker models that more easily rupture will have to be retrofitted or replaced within three to five years. But Martinez and others wanted rules limiting the volatility of what’s going into those tank cars, too.
Oil from North Dakota has a highly combustible mix of natural gases including butane, methane and propane. The state requires the conditioning of the gas and oil at the wellhead so the vapor pressure is below 13.7 pounds per square inch before it’s shipped. But even at that level, oil from derailed tank cars has exploded into flames.
And many safety advocates had hoped federal regulators would require conditioning to lower the vapor pressure even more.
“We don’t want these bomb trains going through our neighborhood,” said Lora Chamberlain of the group Chicagoland Oil by Rail. “Degasify the stuff. And so we’re really, really upset at the feds, the Department of Transportation, for not addressing this in these new rules.”
Oil trains sit idle on the BNSF Railway’s tracks in Chicago’s Pilsen neighborhood. David Schaper/NPR
Others criticize the rules for giving shippers three to five years to either strengthen or replace the weakest tank cars.
“The rules won’t take effect for many years,” said Paul Berland, who lives near busy railroad tracks in suburban Elgin. “They’re still playing Russian roulette with our communities.”
A coalition of environmental groups — including Earthjustice, ForestEthics and the Sierra Club — sued, alleging that loopholes could allow some dangerous tank cars to remain on the tracks for up to a decade.
“I don’t think our federal regulators did the job that they needed to do here; I think they wimped out, as it were,” said Tom Weisner, mayor of Aurora, Ill., a city of 200,000 about 40 miles west of Chicago that has seen a dramatic increase in oil trains rumbling through it.
Weisner is upset the new rules provide exemptions to trains with fewer than 20 contiguous tank cars of a flammable liquid, such as oil, and for trains with fewer than 35 such tank cars in total.
“They’ve left a hole in the regulations that you could drive a freight train through,” Weisner said.
At the same time, an oil industry group is challenging the new regulations in court, too, arguing that manufacturers won’t be able to build and retrofit tank cars fast enough to meet the requirements.
The railroad industry is also taking action against the new crude-by-rail rules, filing an appeal of the new rules with the Department of Transportation.
In a statement, Association of American Railroads spokesman Ed Greenberg said: “It is the AAR’s position the rule, while a good start, does not sufficiently advance safety and fails to fully address ongoing concerns of the freight rail industry and the general public. The AAR is urging the DOT to close the gap in the rule that allows shippers to continue using tank cars not meeting new design specifications, to remove the ECP brake requirement, and to enhance thermal protection by requiring a thermal blanket as part of new tank car safety design standards.”
AAR’s President Ed Hamberger discussed the problems the railroads have with the new rules in an interview with NPR prior to filing the appeal. “The one that we have real problems with is requiring something called ECP brakes — electronically controlled pneumatic brakes,” he said, adding the new braking system that the federal government is mandating is unproven.
“[DOT does] not claim that ECP brakes would prevent one accident,” Hamberger said. “Their entire safety case is based on the fact that ECP brakes are applied a little bit more quickly than the current system.”
Acting Federal Railroad Administrator Sarah Feinberg disagreed. “It’s not unproven at all,” she said, noting that the railroads say ECP brakes could cost nearly $10,000 per tank car.
“I do understand that the railroad industry views it as costly,” Feinberg adds. “I don’t think it’s particularly costly, especially when you compare it to the cost of a really significant incident with a train carrying this product.”
“We’re talking about unit trains, 70 or more cars, that are transporting an incredibly volatile and flammable substance through towns like Chicago, Philadelphia,” Feinberg continues. “I want those trains to have a really good braking system. I don’t want to get into an argument with the rail industry that it’s too expensive. I want people along rail lines to be protected.”
Feinberg said her agency is still studying whether to regulate the volatility of crude, but some in Congress don’t think this safety matter can wait.
“The new DOT rule is just like saying let the oil trains roll,” U.S. Sen. Maria Cantwell, D-Wash., said in a statement. “It does nothing to address explosive volatility, very little to address the threat of rail car punctures, and is too slow on the removal of the most dangerous cars.”
Cantwell is sponsoring legislation to force oil producers to reduce the crude’s volatility to make it less explosive, before shipping it on the nation’s rails.
Repost from The Center for Investigative Reporting and KUOW.org [Editor: This is an important report. State regulators can’t get accurate oil train data from the federally regulated railroads, so Washington officials are turning to the refineries: “Washington state lawmakers passed a law recently that requires oil refineries, which are state regulated, to give weekly notice of the train schedule to first responders.” (See previous report.) The story of Dean Smith’s Train Watch is inspiring – we should set up annual counts in all of our frontline refinery communities. – RS]
Growing oil train traffic is shrouded in secrecy
By Ashley Ahearn / June 13, 2015
Dean Smith was frustrated with the lack of public information about oil train traffic so he organized 30 volunteers to count the trains coming through his community north of Seattle. Credit: Ashley Ahearn/EarthFix/KUOW
EVERETT, Wash. – Dean Smith, 72, sits in his car by the train tracks here north of Seattle.
It’s a dark, rainy Tuesday night, and Smith waits for an oil train to come through town. These trains are distinctive: A mile long, they haul 100 or so black, pill-shaped cars that each carry 30,000 gallons of crude oil.
Smith has been counting the trains for about a year, noting each one on a website he built. The former National Security Agency employee does it because the railroads share little information about oil train traffic with Washington state. They don’t have to because they’re federally regulated.
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What is known: The railroads are moving 40 times more oil now than in 2008 due to an oil boom in the Bakken formation of North Dakota. Bakken crude oil contains high concentrations of volatile gas, with a flashpoint as low as 74 degrees Fahrenheit.
Derailments and explosions have occurred around North America since the oil boom began, including a 2013 catastrophe that killed 47 people in rural Quebec.
This has prompted emergency responders to call for more information from railroad companies about oil train traffic patterns and volumes. The railroads mostly have refused; they say that releasing that information could put them at a competitive disadvantage.
Which is why Smith decided to find out for himself. “It’s pretty hard to hide an oil train,” he said with a chuckle.
Last year, Smith launched the first Snohomish County Train Watch. He organized 30 volunteers to take shifts counting trains around the clock for a week.
In their first week of watching oil trains, the group collected more information about oil train traffic than the railroads had given Washington in the three years the trains have come here.
State officials say Smith’s data is helpful but insufficient. They say they shouldn’t have to rely on citizen volunteers to get critical information in case of disaster.
Dave Byers, the head of spill response for the state’s Department of Ecology, said his team needs the information to plan area-specific response plans to protect the public and keep oil from getting into the environment.
“It gives us an idea of what the risk is, the routes that are taken,” Byers said. “The frequency and volume of oil really gives us an idea of what level of preparedness we need to be ready for in Washington state.”
Oil train traffic shows no signs of slowing, which adds to the state’s sense of urgency. The oil industry wants to build five new terminals in Washington to move crude oil off trains and onto ships.
Meanwhile, Congress is considering legislation to lift a federal ban on exporting crude oil that’s been in place since 1975 – allowing American crude to be shipped around the world.
Close call in Seattle
Anyone who has attended a Mariners baseball game in downtown Seattle likely has seen or heard oil trains passing the ballpark. The trains continue north through the city to refineries on Puget Sound.
Seattle had a close call last year when an oil train derailed near downtown.
Byers and his team weren’t notified for one and a half hours and initially were not told there was oil in the derailed train cars.
No oil was spilled, but Byers is critical of how BNSF Railway, the company that moves most of the oil out of the Bakken oil fields, handled the situation.
BNSF did not tell the state there was highly flammable Bakken crude oil in the derailed train cars – that information came five hours later from the oil refinery waiting for the train. Additionally, Byers said that when his team arrived on the scene, no BNSF representative was present, but welders were working on the derailed cars. The welders said they did not know what was inside.
“We became concerned because people were wandering off the street and taking selfies of themselves next to the rail cars,” Byers said. “There was no preparing for the potential that one of those cars could actually start leaking.”
BNSF spokeswoman Courtney Wallace said in an emailed statement that BNSF Railway had its hazardous materials team quickly in place to evaluate the situation. “This derailment did not cause a release at any point, nor was there a threat of a release,” she said.
The state and BNSF Railway have sparred over the railroad company’s reports of hazardous materials spills. Earlier this year, state regulators released an investigation and recommended that BNSF be fined up to $700,000 for not quickly reporting these spills. The company has disputed the state’s findings. A final decision is expected next year.
Concern in Anacortes
This spring, several hundred people packed into the Anacortes City Hall for information from oil companies and BNSF Railway about the oil trains moving through their community. Just that morning, a BNSF oil train had derailed and caught fire in North Dakota.
In northern Puget Sound, Anacortes is home to two refineries that receive oil by rail from North Dakota. Its residents, like others in small communities along the tracks in Washington state, have voiced concern about oil trains. Congestion woes are among their complaints; unlike Seattle, where the trains mostly pass through tunnels and over bridges, trains here disrupt traffic.
Audience members were allowed to submit written questions only. Oil refineries’ representatives told them about safety precautions at their facilities to prevent and respond to spills. They also talked about their commitment to getting newer oil train cars.
Wallace, the BNSF spokeswoman, gave a presentation about the company’s commitment to safety. She said BNSF believes that every accident is preventable.
When pressed by a reporter about how much information BNSF shares with local emergency responders, Wallace said BNSF has “always provided information to first responders, emergency managers about what historically has moved through their towns.”
She cautioned that sharing regular updates or notifications of oil train movements could put the public at risk.
“We’re always cognizant of what information is shared, because we don’t want to see an incident that involves terrorism or anyone else who might have that kind of frame of mind,” Wallace said.
Fight for information
A federal emergency order demands that railroads share limited information with states – but state officials want more.
Washington state lawmakers passed a law recently that requires oil refineries, which are state regulated, to give weekly notice of the train schedule to first responders.
State Rep. Jessyn Farrell, a Seattle Democrat who sponsored the bill, said BNSF and the oil industry opposed the legislation from the beginning.
“We’re going to get the information,” she said. “I don’t really care who gives it to us as long as it’s good information and it stands in court, because we need that information now.”
BNSF Railway spent more than $300,000 on lobbyists and political contributions in Washington state in 2014.
“I think they’re absolutely on the wrong side of this,” Farrell said. “In the public mind, and morally, they are absolutely wrong.”
BNSF’s Wallace said the company still is reviewing the law to see how federal regulatory authority will interact with state authority.
Back in Everett, Dean Smith said he isn’t waiting for politicians or lawyers to duke this one out.
Instead, he’ll wait for trains, he said, and he’ll continue gathering information about them.
Four hours into a recent train-watching shift, Smith perked up.
“There’s something coming,” he said. He opened the door of his Chevy Volt and stepped into the rain. An orange BNSF engine emerged from the tunnel. Behind it were oil cars – about 100 of them, black as night.
The streetlight reflected off Smith’s glasses and shadows gathered in the furrow of his brow as he stood by the tracks, shoulders hunched.
“Sometimes I wonder, why fight it? Why not just move? That’d be the easiest thing to do,” he said. “But I think we have to fight. And I would like to see citizens groups acting like this all over the country. That’s the form of checks and balances we can create. All it takes is a few people.”
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