Category Archives: Rail industry

Bakken Crude, CPC-1232, Crude By Rail, DOT-111, Oil Industry, Oil industry lobby, Rail industry, Rail industry lobby

Oil industry lawsuit against BNSF: a look behind the scenes

Repost from DeSmogBlog

Purposeful Distraction? Unpacking the Oil Refiners’ “Bomb Trains” Lawsuit vs. Warren Buffett’s BNSF

By Steve Horn, Tue, 2015-03-24 15:58

On March 13, American Fuel & Petrochemical Manufacturers (AFPM) — the oil refiners’ trade association — sued oil-by-rail carrying giant Burlington Northern Santa Fe (BNSF) for allegedly violating its common carrier obligation under federal law. A DeSmogBlog investigation has revealed there may be more to the lawsuit than initially meets the eye.

Filed in the U.S. District Court for the Southern District of Texas, Houston Division, AFPM sued BNSF “for violating its common carrier obligation by imposing a financial penalty” for those carrying oil obtained via hydraulic fracturing (“fracking”) in North Dakota’s Bakken Shale basin and other hazardous petroleum products in explosion-prone DOT-111 rail cars.

AFPM‘s beef centers around the fact that BNSF began imposing a $1,000 surcharge for companies carrying explosive Bakken fracked oil in DOT-111 cars, as opposed to “safer” CPC-1232 cars, at the beginning of 2015.

The Warren Buffett-owned BNSF did so, argues AFPM, illegally and without the authority of the federal government.

“This $1,000 surcharge on certain PHMSA-authorized rail cars breaches BNSF’s common carrier duty to ship hazardous materials under the auspices of PHMSA’s comprehensive regime governing hazardous materials transportation,” wrote AFPM‘s legal team, featuring a crew of Hogan Lovells attorneys. “Allowing railroads to penalize companies that ship crude oil in federally-authorized rail cars would circumvent PHMSA’s statutory and regulatory process for setting rail car standards for hazardous materials shipments.”

Upon a quick glance, it seems like a fairly straight-forward case of federal law and an intriguing example of an intra-industry dispute. But as recent history has proven, the devil is in the details.

BNSF Surcharge Not Unique

Though unmentioned in AFPM‘s lawsuit, BNSF is not the only oil-by-rail “bomb trains” company promulgating a surcharge.

In February 2014, eight months before BNSF announced its surcharge, Canadian Pacific Railway Ltd. (CP Rail) and Canadian National Railway Company both announced their own DOT-111 surcharge intentions.

“CP Rail will add a $325 ‘general service tank car safety surcharge’ on each car of crude that is shipped in any container other than the CPC 1232 model, effective March 14, it said in a notice issued to customers,” Reuters reported. “The new tiered pricing scheme comes the same week that Canadian National Railway Co also confirmed it was increasing rates for the older variety of DOT-111 tank cars.”

In its lawsuit, AFPM disapprovingly cited minutes from a March 19 meeting held between BNSF higher-ups and U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) higher-ups in which a BNSF told PHMSA that “there needs to be [a] disincentive to use DOT 111.”

Those minutes were included as an exhibit to the complaint.

Yet in the Reuters article, CP Rail spokesman Ed Greenberg stated that his company had the same goal as BNSF: to “encourage shippers to work towards an upgraded tank car standard for crude by rail shipments.”

AFPM Lobbies vs. Regs, Funds Denial

As first reported here on DeSmogBlog, AFPM has attended meetings with the Obama White House’s Office of Information and Regulatory Affairs (OIRA), which serves as an industry-friendly mediator between industry and executive-level regulatory agencies like PHMSA. BNSF top-level lobbyists, executives and attorneys have also had a seat at the table at those myriad meetings.

PHMSA is expected to publish a final version of updated oil-by-rail regulations in May, after announcing a delay in January. AFPM also submitted comments in opposition to PHMSA‘s draft rules in September 2014, arguing it’s an issue of train tracks and people, not the rail cars themselves.   

“While AFPM supports appropriate and effective mitigation, several of PHMSA’s proposed measures fail to take meaningful steps toward preventing derailments, risk significantly reducing crude rail capacity, and cost billions of dollars,” wrote AFPM. “AFPM respectfully submits that any effort to enhance rail safety must begin with addressing the primary root causes of derailments and other accidents: (1) track integrity and (2) human factors.”

Beyond advocating against oil-by-rail regulations, AFPM also funded a May 2014 study concluding that Bakken crude oil is no more chemically volatile than any other oil.

“Bakken crude oil was found to be well within the limits for what is acceptable for transportation as a flammable liquid,” the report concludes. “This survey shows that Bakken crude oil does not pose risks that are significantly different than other crude oils and other flammable liquids authorized for transportation as flammable liquids.”

BNSF Responds — Sort Of

Five days after AFPM filed its lawsuit, BNSF responded in the form of a press release. Well, kind of.

“BNSF continues to review the complaint…challenging [its] recent implementation of rate discounts for crude shippers that load their product in rail cars with improved safety characteristics,” stated the company.

“This rate structure is also consistent with BNSF‘s ongoing efforts to ensure the safe transport of crude on our network, including voluntary adoption of enhanced operating practices around crude oil shipments and requesting the federal government to make newer, safer tank cars the new standard for crude-by-rail shipments, replacing the older DOT-111 and non-modified CPC-1232 cars.”

Purposeful Distraction?

So, what gives? Why a lawsuit against BNSF by AFPM and not against CN Rail nor CP Rail? No clear answers exist and AFPM did not respond to a request for comment sent by DeSmogBlog.  

Despite the murkiness at play, some answers do exist.

Firstly, CPC-1232 tanks cars — the centerpiece of the lawsuit — have proven no “safer” than DOT-111 tank cars to begin with. And secondly, the lobbying and advocacy track records of both BNSF and AFPM demonstrate they both prefer the status quo over robust regulations, which would hurt their corporate bottom lines.

Purposeful or not then, at the end of the day, the lawsuit still serves as a distraction for the central issues in the oil-by-rail debate as the May deadline nears for PHMSA to publish its final regulations.

Image Credit: Cartoonresource | Shutterstock

Crude By Rail, Environmental review, Local Regulation, Rail industry, Rail Safety

Milton Mayor: residents ‘will be lying down on the tracks’ to prevent surprise railyard plan

Repost from The Hamilton Spectator

Milton residents ‘will be lying down on the tracks’ to prevent surprise CN plan

By San Grewal, March 17, 2015
MILTON MAYOR
MILTON MAYOR Gordon Krantz says his town has been “blindsided” by a CN plan to have a facility between Britannia Rd. and Lower Base Line that would bring 1,500 trucks and four additional trains into Milton every day. Zoe McKnight,Torstar News Service

A “David and Goliath” battle is shaping up in Milton, where the Toronto Star has learned CN is about to announce plans for a 400-acre rail distribution centre that throws a wrench into the region’s carefully crafted growth management strategy.

Milton’s mayor and top bureaucrat are vowing the town will not go down without a fight.

“We have 50,000 residents, 20,000 houses planned for the area north of this (intermodal) facility. CN came in last week and pronounced that they are going forward — no formal application, no formal announcement,” said Milton’s chief administrative officer, William Mann.

“We know they are announcing it on Thursday. When Milton residents hear about this, they will be lying down on the tracks.”

Mann said the town, one of Canada’s fastest growing municipalities, has been told that CN, as a former Crown corporation, still has a certain power to circumvent municipal planning as governed by the province of Ontario.

Mann and Mayor Gord Krantz told the Star the town has been “blindsided” by the plan for a facility between Britannia Rd. and Lower Base Line that the town says would operate 24/7, transferring containers between trains and trucks. The town says it would bring 1,500 trucks and four additional trains into Milton every day, on CN-owned land that isn’t supposed to be used for such a facility according to Milton’s planning strategy.

Under Sustainable Halton, the region’s widely lauded plan for growth management, the land has been earmarked for strategic employment, with a mix of residential and commercial development surrounding it, as well as environmentally protected lands.

“It’s completely contrary to what we had planned,” Krantz said. “If I knew what was being proposed by CN I certainly wouldn’t be purchasing. Or if I already purchased one (of the newly built homes) and I wanted to get out from under it — I can imagine the possible legal battles.”

But Krantz is vowing to do everything the town can to fight CN, even if the rail giant has the federal government on its side, along with its powers to ignore local planning jurisdiction.

Referring to the tale of David and Goliath, Krantz said: “We all know how that story ended. I’ve got my one shot ready.”

He said Milton is already working with Halton Region and other partners on a legal strategy, but said he didn’t want to tip his hand.

CN responded to the Star’s questions about the project with a brief statement: “CN owns approximately 1,000 acres of land in the Milton, Ont., area. As part of its ongoing business operations, CN continually reviews its facilities and real estate holdings to ensure they are adequate to accommodate growth in its various businesses. Such is the case with CN’s Milton property. CN has no further comment at this time.”

One of the world’s largest rail companies, CN has a market capitalization of almost $71 billion.

CN had proposed a similar project in 2001 — preceding the province’s strategy to manage growth — that was withdrawn after the town and region identified major issues with it, according to a news release from the Town of Milton.

Multiple sources told the Star the CN plan is to be unveiled Thursday at a breakfast event hosted by the local chamber of commerce. As the MP for Halton riding, Federal Transport Minister Lisa Raitt represents Milton. A statement from the ministry to the Star said only that Raitt would attend the Chamber event Thursday “and looks forward to the presentation.”

The Ministry of Municipal Affairs and Housing was asked whether the province would guarantee a public consultation and that provincial environmental and safety rules as well as municipal planning processes would be complied with. A spokesperson said the ministry, and the Ministry of Transportation, “have been advised by CN that they are revisiting the need for an intermodal yard in the Town of Milton … CN has not provided the province with specific details of their proposal.”

With concern mounting over rail safety in the wake of the Lac-Mégantic disaster and more recent fiery derailments of trains carrying crude oil, Krantz and Mann said they have been disheartened by the province’s unwillingness to address the CN plan.

When asked if he has an idea of what would be passing through the area, Krantz said: “That’s a good question. We don’t know what’s going to be transported.”

Beyond the negative impact on surrounding property values, and environmental and safety concerns, the development industry is going to be extremely upset with CN’s decision, he said.

“You ain’t seen nothing yet. Wait until the developers, especially in the residential sector, hear. I suspect their reaction will be something like mine.”

Mann said Milton has behaved like the model municipality for Ontario’s Places to Grow Act, which established managed population growth targets throughout the GTA. The town has grown from about 7,000 residents in 1971 to 84,362, according to the 2011 census.

“We could go to over 400,000 under Places to Grow. Places to Grow is all about taking your fair share. Now, upward of 500 acres of employment land and all the residential around it, could be taken out of the picture. That means the rest of the GTA will have to pick up that population.

“This plan has nothing but negative consequences for Milton, from a community perspective.”

Bakken Crude, Crude By Rail, Oil Industry, Oil producers, Rail industry

Crude oil joins rail industry staples as key revenue producer

Repost from Reuters

Crude oil joins rail industry staples as key revenue producer

By Jarrett Renshaw, Mar 16, 2015 2:05pm EDT

(Reuters) – U.S. railroads generated almost as much money last year hauling crude oil and sand, largely used in hydraulic fracturing, as they did moving industry staples like field crops and motor vehicles, according to a Reuters’ analysis of newly released federal data.

The previously unreported company data submitted to the U.S. Department of Transportation provides the latest piece of evidence of the blossoming marriage between the energy and rail industries, forged on the back of the U.S. shale oil boom.

Led by Berkshire Hathaway-owned BNSF Railways, the seven largest railroads operating in the United States generated $2.8 billion in gross revenue from hauling crude oil in 2014, up nearly 30 percent from 2013, according to company data filed with the federal government and released earlier this month.

The $2.8 billion figure puts crude oil in sixth place among similarly classified products, trailing industry standards like coal, field crops and motor vehicles, the analysis shows. Sand and gravel, an often overlooked winner in the shale boom, generated $2.7 billion last year in gross revenue.

Crude oil provides the biggest return on a per-carload basis, drawing $5,700 in gross revenue for each car that originated on the network, more than double than what coal brings.

The continuing financial success comes as the industry faces threats from a massive drop in oil prices and impending new U.S. regulations aimed at public safety that could impose additional costs.

“Will the major carriers go belly up? No,” said Barton Jennings, a professor of supply chain management at Western Illinois University. However, short-line cariers that rely upon crude for the bulk of their business may be exposed, he said.

Overall, the seven major carriers reported U.S. profits of $14.4 billion last year, led by Union Pacific and BNSF, which combined accounted for 67 percent of the industry’s U.S. profits, the analysis shows.

KING CRUDE

The biggest player in the U.S. crude rail business is BNSF, which dominates North Dakota, home to the Bakken shale.

BNSF’s gross revenue from crude oil rose to $1.48 billion from $63 million in 2010. Gross revenue from hauling sand and gravel climbed to $651 million last year, a more than 300 percent jump from 2010.

The growth in crude and sand hauling helped BNSF boost profits, which climbed from $2.6 billion in 2010 to $4.4 billion last year.

(Reporting By Jarrett Renshaw; Editing by Jessica Resnick-Ault and Jonathan Oatis)
Bakken Crude, Crude By Rail, DOT-111, Oil Industry, Rail industry

Refiners’ Association sues railroad over fee on oil loaded in older tank cars

Repost from McClatchy DC
[Editor:  Incredible: The complaint says, “Despite BNSF’s distaste for the DOT-111 cars, (emphasis added) they are authorized bulk packaging for crude oil service.”  “Distaste?”  Really!  Oh, and … the BNSF surcharge would suggest that $1000/car will help exactly whom if/when the next explosion occurs?  Surely not those whose bodies and livelihoods are incinerated.  See this story also at Bloomberg Business News and Courthouse News Service.  – RS]

Refiners sue BNSF over fee on oil loaded in older tank cars

By Curtis Tate, McClatchy Washington Bureau, March 16, 2015

A trade group representing oil refiners has sued the nation’s largest hauler of crude oil in trains over a surcharge for oil loaded into older tank cars that have punctured and ruptured in numerous derailments.

The American Fuel & Petrochemical Manufacturers, a trade association for producers of gasoline, jet fuel, home heating oil and other refined products, sought an injunction last week in U.S. District Court in the Southern District of Texas to block BNSF Railway from imposing a $1,000 surcharge for every DOT-111 model tank car loaded with crude oil.

Tens of thousands of DOT-111 cars have carried a surge in domestic energy production, but their poor safety record in oil and ethanol train derailments has drawn fresh scrutiny from regulators, lawmakers and the National Transportation Safety Board.

BNSF hauls 600,000 barrels a day of crude oil, mostly from North Dakota’s Bakken region, to refineries on the east and west coasts. In October, the railroad announced it would impose a $1,000 surcharge on oil shipped in DOT-111 tank cars, effective Jan. 1.

But the trade group, which represents more than 400 companies, said in its complaint that BNSF asserted “unlawful regulatory authority” when it began imposing the surcharge.

The U.S. Department of Transportation regulates rail transportation, and until regulations require tank cars of a different design for oil shipments, the group’s complaint says that BNSF and other railroads are obligated by law to accept them in whatever cars the government currently allows.

“Despite BNSF’s distaste for the DOT-111 cars,” the complaint says, “they are authorized bulk packaging for crude oil service.”

One DOT-111 tank car holds about 30,000 gallons, or 700 barrels of oil. The complaint says the $1,000 surcharge adds $1.50 per barrel in rail transportation costs.

The trade group’s complaint says that BNSF’s surcharge causes “direct and substantial harm” to its clients and “breaches BNSF’s common carrier duty to ship hazardous materials.” By law, railroads must provide rail transportation on reasonable request.

The Pipeline and Hazardous Materials Safety Administration submitted a new design for tank cars to the White House Office of Management and Budget for review in January.

Four crude oil trains have derailed and caught fire across North America since mid-February. One of them was a BNSF train that derailed earlier this month near Galena, Ill.

In all four derailments, the tank cars were a modestly improved version of the DOT-111.