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.”
December 12, 2014 by Donna Beth WeilenmanREP. MIKE THOMPSON’S H.R. 4681 passed the House on Thursday. File photo
President Barack Obama is poised to sign legislation from U.S. Rep. Mike Thompson, D-Napa, that would require security assessments of American oil refineries, including Valero Benicia Refinery, and railroad infrastructure, such as Union Pacific that has tracks through Benicia.
Austin Vevurka, Thompson’s spokesperson, said Thursday that Thompson’s legislation is part of House of Representatives Bill 4681, the Intelligence Authorization Act for Fiscal Year 2015.
The bill requires the Department of Homeland Security Office of Intelligence and Analysis (DHSI&A) to conduct the intelligence assessment. Once the assessment is done, the department would send the results to the House and Senate intelligence committees and supply recommendations for improvements.
Thompson, Benicia’s representative in the House, said the recommendations would help officials better protect communities surrounding refineries and railways.
“Public safety is my number-one priority,” he said, “and through enhanced reporting we can better know if threats exist and how we can fix them.” He said the law “will help make sure we’re transporting and holding crude oil and other cargo through and in our communities in a safe manner.”
He said the improved reporting required by his legislation would help officials in their assessment of the types of threats American oil refineries and railways face, so those threats can be mitigated.
This could include improvements to security at refineries or upgrades to rail infrastructure that could decrease the likelihood of derailments, he said.
Many trains transporting crude oil from the Bakken shale formation of North Dakota run through Thompson’s California District 5. He said the crude oil from that region is regarded as highly flammable. He said his legislation would increase the likelihood the crude would be transported safely.
H.R. 4681 passed the House by a vote of 325-100, and has been sent to Obama to be signed into law.
Thompson bill addresses two important safety concerns
By Times-Herald staff report,
Legislation by U.S. Rep. Mike Thompson to improve security at America’s embassies and for rail and refineries passed the U.S. House of Representatives on Wednesday and now heads to the president’s desk for his signature, the St. Helena Democrat’s office announced.
H.R. 4681, the Intelligence Authorization Act for Fiscal Year 2015, grew partially out of the 2012 terrorist attack out the U.S. Consular facility in Benghazi, Libya, Thompson said.
Studies done since the attack have identified the need for security personnel at U.S. diplomatic posts to receive threat information from the intelligence community in a more timely manner so they can request and receive security enhancements as needed, according to the announcement. Thompson’s legislation will address this need by enhancing information sharing, he said.
“Studies since the Benghazi attack have shown that we need to improve communication between our intelligence community and our diplomatic outposts, and this will make sure that happens,” Thompson said in the announcement.
Thompson’s legislation directs the Director of National Intelligence to provide a status assessment to the House and Senate Intelligence Committees of threat information sharing between the intelligence community and diplomatic security personnel, and to propose remedial action to help make sure security personnel at U.S. embassies can request and receive enhanced security in a timely manner.
The same bill also enhances rail and refinery security by requiring the Department of Homeland Security Office of Intelligence and Analysis to conduct an intelligence assessment of domestic oil refineries and related rail infrastructure security, Thompson’s office said. The assessment’s results are then to be submitted to the House and Senate Intelligence Committees, along with any recommendations for improving those operations’ security. This aims to help officials better protect the communities surrounding refineries and railways from potential harm.
“Public safety is my number one priority and through enhanced reporting we can better know if threats exist and how we can fix them,” Thompson said.“This law will help make sure we’re transporting and holding crude oil and other cargo through and in our communities in a safe manner.”
Many trains transporting crude oil from North Dakota’s Bakken Shale formation run through Thompson’s congressional district. The crude oil from this region is regarded as highly flammable and this legislation will help make sure it’s transported safely, he said.
“The most recent edition of Inspire magazine, March 2014, the online, English-language propaganda publication of [Al-Qaeda in the Arabian Peninsula], presents a full-page collage depicting varied images…in order to construct an explosive device,” reads Carbaugh’s affidavit.
“Among these images are a derailed passenger train and a partly covered note paper listing cities in the [U.S.] as well as the terms ‘Dakota’ and ‘Train crude oil.’”
Carbaugh also cited Osama bin Laden, the late Al-Qaeda international ring-leader, in his affidavit.
“Among the materials seized in the May 1, 2011, raid on Osama bin Laden’s compound in Abbottabad, Pakistan, were notes indicating interest in ‘tipping’ or ‘toppling’ trains — that is causing their derailment,” Carbaugh wrote.
Osama Bin Laden Compound Diagram; Image Credit: Wikimedia Commons
Apperson says both lawsuits were redundant because “we reiterated [to both companies] that we would not release the documents under state open records law until the court challenge is resolved.”
MDE filed a response arguing such in July 25 legal motions issued to CSX and Norfolk Southern.
Big Rail has used a similar approach in New Jersey, another state that has not yet publicly-disclosed oil-by-rail route information.
Lee Moore, a New Jersey Department of Law and Public Safety spokesman, explained why to The Record.
“Releasing all of the records, which include the rail lines on which Bakken crude oil is being transported, would pose a homeland security risk,” said Moore.
“Clocks and Windows”
William Larkin Jr., a Republican member of the New York Senate, believes the argument put forward in both Maryland and New Jersey is flawed on its face.
Photo Credit: Office of NY Sen. William J. Larkin, Jr. (R)
“I feel that both the U.S. Department of Transportation and a number of critics seemed to have missed the point, at least the larger point,” Larkin Jr. told the Poughkeepsie Journal on July 20. “[People] already know which rail lines oil companies are utilizing. Clocks and windows provide this information.”
Despite holes in its narrative about national security risks associated with disclosure of oil-by-rail routes, one measure some companies have taken is to create citizen volunteer security groups.
Norfolk Southern has a website called “Protect the Line,” in which they ask citizens to “Join the Force.” And BNSF has “Citizens for Rail Security,” which declares, “Communities play a key role in ensuring America’s rail network remains safe from terrorism and criminal activity.”
Photo Credit: “Citizens for Rail Security” Website Screenshot
The contradiction is readily apparent: communities can volunteer to keep the railroads safe, but they are not allowed to get information from the railroads about what they are keeping their communities safe from in the first place.
TSA: Asleep at the Wheel
The Transportation Safety Administration (TSA) oversees and implements rail safety as it pertains to preventing terrorist threats and attacks.
However, records obtained via a recent Freedom of Information request by EnergyWire reveal TSA is asleep at the wheel in this sphere. Worse, it has been for years.
“[A] Freedom of Information Act request from EnergyWire revealed that the agency never followed through with regulations despite an August 2008 deadline,” explains the story. “That means TSA neither keeps railroads’ security plans on file nor reviews them in any standardized fashion.”
It all comes down to priorities. According to EnergyWire’s investigation, a major funding gap exists between security for surface transportation (like rail) and aviation security.
“TSA’s budget for fiscal 2012 set aside $5.25 billion for aviation security, while devoting $135 million to surface transportation security across all modes,” wrote EnergyWire.
When looked at on the whole, a sober reality arises.
That is, while Big Rail trumpets terrorism threat risks in the legal arena to skirt transparency, the industry has concurrently done little to halt the very terrorism threats it claims a desire to stop.
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