Category Archives: Legal action

Civil penalties, Criminal negligence, Crude By Rail, Derailment, Explosion, Fire, High Hazard Flammable Trains (HHFTs), Legal action, Rail inspection

Railroad Regulators Fail to Pursue Criminal Prosecution of Hazardous Cargo Safety Violations

Repost from Associated Press & AllGov.com
[Editor:  Significant quote: “Although the agency processes hundreds of safety violations each year, it appears that not a single case has ever been referred for criminal investigation.”  See also Matt Krogh’s News Analysis: Inspector General Cites Failure of Federal Railroad Administration on Oil Train Safety.  – RS]

Inspector General Report: Rail Hazmat Safety Violations should be prosecuted

By Joan Lowy, Associated Press, February 28, 2016
Sarah Feinberg, Federal Railroad Administration administrator

WASHINGTON (AP) — Federal regulators are failing to refer serious safety violations involving freight rail shipments of crude oil and other hazardous cargo for criminal prosecution, and are going lightly on civil fines, according to a report released Friday by a government watchdog.

The Federal Railroad Administration routinely applies only modest civil penalties for hazardous materials safety violations, even though inspectors request penalties only for serious or repeated infractions, said the report by the Department of Transportation’s inspector general.

Instead, the agency’s attorneys have made it a priority to process penalties quickly and avoid legal challenges, the report said.

And, although the agency processes hundreds of safety violations each year, it appears that not a single case has ever been referred for criminal investigation, the report said. After examining a random sample of safety violations over five years, the inspector general’s office found 17 cases it said should have referred for criminal investigation.

Based on that sample, the inspector general’s office estimated 20 percent, or 227 out of 1,126 violations, may have warranted criminal referral. The agency’s attorneys told the watchdog that they didn’t make criminal referrals because they didn’t know the procedures for doing so, and they didn’t think it was part of their job.

“As a result, penalties have little deterrent effect, and criminal penalties aren’t being pursued,” wrote Mitchell Behm, assistant inspector general for surface transportation.

Concern about rail shipments of hazardous cargo has been heightened in recent years by a series of fiery oil train explosions in the U.S. and Canada, including one just across the border in Lac-Megantic, Quebec, that killed 47 people. More than 400,000 tank cars of oil are shipped across the country annually.

Rep. Peter DeFazio of Oregon, the senior Democrat on the House Transportation and Infrastructure Committee, said the report confirms “that the federal government has failed to provide the necessary oversight to protect communities across the country from serious accidents involving the rail transportation of hazardous materials.”

One case the report said should have been referred for criminal investigation involved a company that produced tank car valves that hadn’t been put through a required design approval process. The valves subsequently leaked hazardous liquids. In another case, a company may have deliberately failed to disclose that a shipment included radioactive containers.

Matt Lehner, an FRA spokesman, said most of the inspector general’s recommendations are being implemented. He noted that the agency collected $15 million in fines for violations in the 2015 federal budget year, a 12 percent increase over the previous year and the most in the agency’s history

The inspector general’s office also found that the agency doesn’t have a complete understanding of the risks of hazardous cargo shipments because the agency makes safety assessments by looking narrowly at operations in specific regions, not the nation as a whole.

The regional evaluations also don’t include an assessment of the risks of transporting highly volatile and hazardous materials like crude oil near cities and major population centers, the report said.

Without an accurate national assessment, the railroad administration can’t be sure that all the appropriate risk factors are being considered when deciding which operations are most in need of inspections, the report said.

The inspector general also faulted the agency’s complex records system, saying it makes difficult for inspectors to access safety information on rail operations outside their region. As a result, the railroad administration and a sister agency, the Pipeline and Hazardous Materials Safety Administration, don’t share critical and up-to-date information with safety inspectors and investigators in different regions throughout the country.

Crude By Rail, Derailment, Explosion, Fire, Legal action, Railroad negligence, Railroad workers

Second train worker sues BNSF over Casselton oil train explosion

Repost from INFORUM, Fargo ND

Second train worker sues BNSF over Casselton oil train explosion

By Emily Welker on Nov 19, 2015 at 5:30 a.m.
Smoke rises from scene of a derailed train near Casselton, North Dakota December 30, 2013. Michael Vosburg / The Forum

FARGO – A train conductor in the massive oil tanker train derailment and explosion in Casselton about two years ago is suing BNSF Railway, claiming its negligent safety practices left him injured in the wreck.

It’s the second lawsuit filed in Cass County District Court by a railroad worker in connection with the derailment and explosion, which prompted evacuations in Casselton as thick smoke billowed from oil tanker fires that burned for more than a day. An eastbound 106-car BNSF train hauling oil struck a derailed westbound train hauling soybeans on Dec. 30, 2013, about a half-mile outside of Casselton.

The latest lawsuit, filed Tuesday by Burleigh County train conductor Peter Riepl, says that Riepl was working as conductor on the train, which was loaded with crude oil from the Oil Patch in western North Dakota. The oil train’s lead locomotive hit a railcar from the derailed soybean train, forcing the oil train to derail, the lawsuit says. It says as the oil tankers on Riepl’s train began to catch fire and explode, he leapt from the train to escape and was injured.

The lawsuit claims BNSF was negligent in its safety practices, including in its failure to follow federal and state laws and regulations, and in failing to adopt safe methods to transport hazardous materials.

It also claims that Riepl injured his back two years before that while working on a BNSF train near Stanton, N.D., when he hit his foot on an unsafe section of flooring and fell, also due to the railroad’s negligence.

The suit doesn’t ask for a specific dollar amount, but says Riepl suffered severe and permanent damages and wants the railroad to pay for those losses and damages, including his medical care.

Attorneys on both sides couldn’t be reached for comment Wednesday, and no response to Riepl’s lawsuit had yet been filed in court.

BNSF spokesperson Amy McBeth said in an email, “BNSF values Mr. Peter Riepl as an employee, and we are reluctant to say anything about him or his lawsuit outside of the context of his case.”

In their legal response to a similar lawsuit filed in earlier this year in connection with the Casselton derailment, BNSF officials denied any negligence.

That suit, filed by Fargo train engineer Bryan Thompson, also claimed BNSF failed to warn its train workers about the dangers of oil tanker trains and didn’t take appropriate safety precautions.

Thompson claims he suffers from post-traumatic stress disorder because of the crash, and he was forced to leave his career as a train engineer.

BNSF officials said in their response that Thompson’s suit might be barred by the terms of the federal Railroad Safety Act. The lawsuit is still pending. A trial is set for August 2017.

The Casselton derailment received nationwide coverage, coming just a few months after a train carrying North Dakota crude rolled down a hill and exploded, killing 47 people in Quebec. The crashes contributed to an ongoing national discussion about the risk of hauling crude oil overland from North Dakota’s Oil Patch.

The National Transportation Safety Board hasn’t released the final results of its investigation of the crash.

Bakken Crude, Crude By Rail, Derailment, Emergency Readiness & Response, Environmental Impacts, Explosion, Federal pre-emption, Fire, Fracking, Freedom of Information Act (FOIA), Hazardous cargo transparency, Hazmat notification, Homeland Security, Legal action, Public Safety

Maryland judge orders railroads to release oil train reports

Repost from McClatchyDC

Maryland judge orders release of oil train reports

HIGHLIGHTS
• 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.

Bay Area Air Quality Management District (BAAQMD), California Air Resources Board (CARB), California Energy Commission, Clean Air Act, Environmental Impacts, Environmental justice, Hazardous waste dumps, Legal action, Public Health, Public Safety

Pittsburg CA: Suit claims EPA failed to investigate

Repost from the Contra Costa Times

Pittsburg: Suit claims EPA failed to investigate complaints of environmental discrimination

By Bay City News Service, 07/21/2015 09:43:40 AM PDT

PITTSBURG – A consortium of environmental groups sued the U.S. Environmental Protection Agency for failing to investigate complaints of discrimination in the placement of power plants or hazardous waste dumps in various locations across the country, including two power plants in Pittsburg.

The EPA has 180 days to respond to the complaints, but according to the suit, which was filed on July 15, the federal regulator has not responded to the complaints in 10 to 20 years in some cases.

The suit includes allegations about facilities in Michigan, Texas, New Mexico, Alabama and California.

In Pittsburg, the suit alleges that the local regulatory agencies — the Bay Area Air Quality Management District, the California Air Resources Board, and the California Energy Commission — discriminated against residents by locating two power plants in an already environmentally over-burdened area, according to Marianne Engelman Lado, a lawyer with Earthjustice, which is representing the plaintiffs.

“This is in a community where people have high rates of asthma or cancer and they were concerned that these plants would add to that,” Engelman Lado said.

Californians for Renewable Energy, or CARE, filed a complaint with the EPA’s Office of Civil Rights in April 2000 charging the local agencies discriminated against the predominantly nonwhite and low-income residents by failing to consider the additional environmental burden of the two new plants, the complaint alleges.

Permitting for the plants, the Los Medanos Energy Center LLC and Delta Energy Center, continued and the plants were approved and went online in 2001 and 2002, respectively, according to the complaint. The EPA accepted the complaint in December 2001 but has yet to conduct an investigation into the allegations, despite attempts in 2006 and 2009 by CARE to prompt the federal agency to respond, the complaint alleges.

In June 2002, the EPA classified Los Medanos Energy Center as being in “significant violation” of the Clean Air Act and over the last five years the facility has had to pay over $3,000 in fines for violating the act, according to the complaint.

In the meantime, residents have been suffering the consequences, Engelman Lado said.

“The plants are still standing and they’re polluting,” she said. “They’re emitting toxins and the community is living with that everyday.”

Engelman Lado said it’s clear the EPA has violated the law, and she’s hoping the lawsuit will result in the EPA completing their investigation.

Engelman Lado added she’s confident that when the EPA does complete the investigation, it will make findings of discrimination.

“We would hope, whether through a court order or by sitting down at the table, we could bring resources to bear to say, ‘What can we do to help these communities who are suffering from a lack of infrastructure or resources,'” she said.

That could take the form of more monitoring, infrastructure to mitigate some of the negative impacts of the power plants, or more extensive buffers between the community and the plants.

A representative from the EPA did not return a request for comment.