States, railroads at odds over oil-train information

Washington among states saying details of shipments are subject to their open-records laws

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Anyone with time, patience and a sharp enough eye to make out the number 1267 on a small placard can spot a crude oil train rolling through town.

“It’s not hard to miss,” said Matt Landon, a 35-year-old community organizer who co-founded Vancouver Action Network to monitor oil shipments. “You just look for the mile-long oil train.”

It’s tougher, though, to establish a pattern for oil train movements through the state. That information might someday be vital to emergency service providers in the event of a spill or, worse yet, an explosion of the highly volatile crude oil coming out of North Dakota’s Bakken shale formation. But BNSF Railway, which is transporting most of that oil in Washington, doesn’t think it should have to tell the public the routes, numbers of trains and quantities of the shipments moving through their communities.

The railroad’s position is backed by the U.S. Department of Transportation, which recently ordered railroads to share information with states about the movement of Bakken crude, but with the understanding that the data would go only to emergency responders.

Despite the stance of BNSF, other railroads and the federal transportation department that the information is too sensitive to release widely, Washington and several other states are refusing to sign confidentiality agreements, instead insisting that such information would be public under state open-records laws.

On Friday, BNSF spokeswoman Courtney Wallace said the railroad would supply states with oil-train information, without formal confidentiality agreements, but still expects the data to be shared only with emergency responders — not the public.

The railroad’s resistance is stirring tensions in states across the nation. Some who live along rail lines fear that what state regulators, first responders and the public know and don’t know — and, as a result, how prepared they are to prevent or limit a catastrophe — may be a matter of life or death.

“There isn’t any one fire department that has the capability to respond to a spill or fire involving hundreds of thousands of gallons of crude oil,” said Rick Edinger, vice chairman of the Hazardous Material Committee for the International Association of Fire Chiefs. “You can’t amass that amount of equipment. What we’re doing is learning how to size up these situations, to minimize the hazard and damage to life and property.”

In Washington, nearly 17 million barrels of oil were hauled across the state by rail in 2013 alone, the state Department of Ecology estimates. That’s up roughly 40 percent in one year. Before 2012, virtually all of the state’s oil arrived by way of pipeline and marine vessel.

Ship and pipeline operators are required to have state-stamped emergency oil-spill response plans in place before they move crude through the state and its counties. But railroads enjoy federal preemptions from those state laws.

The Ecology department is scrambling to get information from the railroads to update oil-spill plans and to fill emergency response gaps, particularly in inland areas. But when the department asked BNSF Railway for a copy of the railroad’s own oil-spill contingency plans, the Fort Worth, Texas-based railroad replied that the department would first need to sign a confidentiality agreement, according to David Byers, response manager for Ecology.

Such a request conflicts with the state’s public disclosure laws, Byers said in an email to The Columbian. “We can’t sign it,” he said, “and therefore haven’t seen their plan.”

To be sure, Byers said, BNSF has been responsive to a certain extent and has made improvements, including adding oil-spill response equipment. However, Byers said, “there’s still that big gap in terms of where they are and the rest of the regulated oil industry is in Washington state.”

State lawmakers feel stymied by the secretiveness of railroads, too.

“It’s incredibly frustrating that we can’t even get basic information from the railroads on oil train shipments that would help us to keep our community safe,” Rep. Andy Billig, a Spokane Democrat, said.

In a February committee hearing on a bill to require study of crude oil transport, Billig pressed BNSF for information about the quantity of crude oil traveling through his city and how much it’s expected to increase. Months later, he has yet to receive an answer that satisfies him.

At the federal level, U.S. Sen. Patty Murray, D-Wash., has introduced oil-train safety legislation, including mandated comprehensive oil-spill response plans for railroads. Currently, federal rules require little in the way of oil-spill preparedness on the part of railroads. Murray’s legislation echoes recommendations by the National Transportation Safety Board. The NTSB says railroads should submit oil-spill plans before handling and moving crude, as pipeline operators must do.

In a statement to The Columbian Friday, Murray said: “Just a few years ago, there were almost no shipments of crude oil by rail in Washington state, but today, millions of gallons of oil moves through our communities by rail every single day. This new reality brings new, challenging safety concerns, which I take very seriously.”

‘May be more flammable’

In Southwest Washington, Clark Regional Emergency Services Agency, known as CRESA, is moving in the direction of public disclosure of oil-train data. It will release information obtained from the railroads about crude oil quantities to The Columbian in response to the newspaper’s April request under the state’s public records act.

The agency initially redacted all information about hazardous cargo, including crude, citing exemptions to public records laws for sensitive security information. But crude oil, including Bakken crude, is not classified as a sensitive security commodity, Mike England, a spokesman for the U.S. Department of Transportation, confirmed to The Columbian.

The county gave the railroads until June 16 to seek protection for the information, if they deem appropriate, said Taylor Hallvik, a Clark County civil deputy prosecutor.

BNSF would not say if it will seek to block release of the information.

“We are not going to speculate about a possible future action,” BNSF spokeswoman Wallace said by email.

BNSF has long maintained “federal regulations prohibit railroads from publicizing data on train volumes, content and routing based on transportation security and proprietary shipper confidentiality,” Wallace said.

“Although we do not publicly release this data, we do and will continue to share pertinent information with emergency planners and responders,” she said. Wallace noted that BNSF offers free hazmat training, with 20 sessions last year that provided training for more than 900 people. One of those sessions was in Vancouver.

The railroad’s approach, including additional training sessions this year, satisfies some emergency responders. Vancouver Fire’s hazardous materials team, which serves counties along the lower Columbia River, appreciates the cooperation it’s received from BNSF, Battalion Chief Steve Eldred said.

“They’re good about working with us and training and sharing information with us,” he said.

But overall, the railroad company finds itself under increasing pressure in many states to release closely guarded information. Amid a string of at least eight oil-train calamities in the past year in the U.S. and Canada, the U.S. Department of Transportation has ordered stepped-up safety protocols. Those actions include issuing an emergency order last month requiring railroads to supply state Emergency Response Commissions with the routes, volumes and numbers of trains hauling 35 tank cars or more of crude extracted from the Bakken shale formation in North Dakota. U.S. regulators have warned that Bakken crude “may be more flammable than traditional heavy crude oil.”

Accidents — at least one deadly — are exacerbating safety concerns across the country. A fiery derailment in Lynchburg, Va., in April evacuated the city’s downtown and spilled 30,000 gallons of crude into the James River. An explosive derailment in Lac-Megantic, Quebec, in July killed 47 people and vaporized much of the small city’s downtown.

A ‘need to know’

Concern about oil trains ramped up in Clark County when Tesoro Corp. and Savage Companies early last year proposed to build an oil-by-rail transfer terminal at the Port of Vancouver, capable of handling as much as 380,000 barrels of Bakken crude per day. After hauling the oil to the port and storing it, the companies intend to load the crude onto ships bound for U.S. refineries.

The terminal would be the largest such operation in the Northwest. But even if it doesn’t win approval from the state Energy Facility Site Evaluation Council and ultimately Gov. Jay Inslee, more oil will rumble through Vancouver by rail. At least 10 other port terminals and refineries in Washington and Oregon are planned, under constrution, or already operating to support oil-trains amid a boom in domestic crude production.

Even with the oil transport boom, BNSF has fought any wider release of the oil shipment information, testifying against bills introduced in the state’s last legislative session seeking to boost transparency. The Legislature considered the disclosure issue in several bills during this year’s session. Although the bills died, transparency, emergency planning and other oil-train issues are expected to crop up again when the state Legislature convenes in January.

Eric de Place, policy director at Sightline Institute, a Seattle-based nonprofit that researches sustainability issues, says he doesn’t buy BNSF’s statement that it’s prohibited by federal law from widely releasing information about train volumes, content and routing.

“I think the railroads and oil companies and the shippers are secretive because they are more (focused on) their proprietary interests than the health and well-being of communities,” he said.

BNSF obviously takes issue. To the railroad, nothing is more important than safety, spokeswoman Wallace said. The railroad shares information about shipments with those who have a “need to know,” she said.

Although the U.S. Department of Transportation issued an emergency order telling railroads to disclose Bakken oil-train information to emergency managers and first responders, it sides with BNSF and other railroads in attempting to prevent states from releasing the information to the public.

In a frequently-asked-questions document about its emergency order — obtained by The Columbian from the Washington state Emergency Response Commission — the U.S. Department of Transportation says it “expects the (state Emergency Response Commissions) to treat this data as confidential, providing it only to those with a need-to-know, and with the understanding that recipients of the data will continue to treat it as confidential. “Accordingly,” the federal transportation department says, “railroads may require reasonable confidentiality agreements prior to providing this information.”

‘A direct impact’

BNSF has supplied information about shipment of hazardous materials to Clark County’s local emergency planning committee, which prepares for hazardous material emergencies under the 1986 Emergency Planning and Community Right-To-Know Act. That federal law was adopted in response to the Union Carbide plant disaster in Bhopal, India, that killed thousands. It requires companies to disclose information about hazardous materials, but only at fixed facilities.

Although the law doesn’t apply to railroads, BNSF turned over the information anyway when John Wheeler, the emergency management coordinator at CRESA, requested it in 2010. The information validated what he and other emergency officials already assumed: that chemicals commonly used in the Northwest for refrigeration, water purification and agriculture are transported by rail, including deadly chlorine and anhydrous ammonia.

Wheeler, who coordinates the local emergency planning committee, requested the information again in 2012.

“The second time was to look at what we could glean in terms of changes in types of chemicals, with an eye toward crude. I had heard, and could see visually, that there was an increase in crude oil,” Wheeler said. The spreadsheets confirmed a spike.

When The Columbian first requested those spreadsheets, CRESA redacted all information about hazardous commodities, most of which are protected by federal regulations guarding sensitive security information.

The absence of public information from railroads motivated Landon to found the Vancouver Action Network this year to hold railroads and oil companies accountable. In mid-April his group launched Washington State Train Watch, with residents in Vancouver, Camas, Spokane, Everett and the Columbia River Gorge monitoring oil trains. The effort included recording the number of oil trains moving through communities, tracking the placards that identify what’s inside a tank car and using scientific equipment to monitor toxic air emissions from tank cars.

The group publishes the information it gathers by way of a blog, Twitter feed, Facebook and YouTube. The 12-day effort in April was successful, Landon said. So much so, the all-volunteer group plans to continue the train-watch program this summer. The ongoing effort will include helping enforce the federal government’s order that railroads disclose oil-train information “and possibly bust the railroads for violations,” Landon wrote in a May 29 blog post.

Landon and other critics, including de Place, the Sightline policy director, want to ensure that government and industry can no longer keep communities in the dark about potentially dangerous oil trains.

“The information for emergency responders is way up there on reasons why we want to know what’s traveling through neighborhoods,” de Place said. “Because it has a direct impact on those who live nearby, it’s only fair that folks would be allowed to know something about that. Folks may want to be able to mitigate their own risks.”