Sensitive oil train data snarled in state-by-state disclosure battles

Energywire | June 9, 2014 | Column by Blake Sobczak 

Dean Smith was caught unawares a few months ago when he first spotted 100-car oil trains rumbling by three blocks away from his home in Snohomish County, Wash.

He asked around, but "no one seemed to know anything about them," he said, so the 72-year-old retired physicist decided to take matters into his own hands.

With support from the local Sierra Club chapter and several green groups, Smith organized a 24/7 train watch May 21-28 in the town of Everett. About 30 volunteers took shifts posing as sentries along the tracks, counting 16 oil trains in all.

"We knew [railroads] weren't giving us the information, and we felt as citizens that we need to have it," said Smith, who took up several posts in the middle of the night and estimates he spent 30 hours trainspotting throughout the week. "Our little train watch here may be the only source of information for our local officials, so Tuesday we'll have a meeting to thank the people who watched and present the report to the public," he added.

Washington state has become a focal point in the nationwide debate over oil train transparency after a string of recent derailments and fires. Crude-by-rail shipments hit a record 110,000 carloads across the United States in the first quarter of 2014, according to the Association of American Railroads, but much about when and where those tank cars pass is kept secret on competitive and security grounds.

On May 7, the U.S. Department of Transportation issued an emergency order forcing railroads to share train traffic and routing information when hauling more than 1 million gallons of crude from North Dakota's Bakken Shale play. Freight giants such as Warren Buffett's BNSF Railway Co. and CSX Corp. had until Friday to file the information with state emergency response authorities or face daily fines of up to $175,000.

DOT said it expects states to keep the information shielded from public view, noting in a May 23 "frequently asked questions" that secrecy pacts have been par for the course in historical dealings among railroads and state governments.

"The DOT believes that following precedent and sharing the data required by this Emergency Order under confidentiality agreements is appropriate," the nation's top transportation regulator noted.

But Washington's State Emergency Response Commission has balked at signing a confidentiality agreement on railroads' terms. Officials there say the strict language in pacts presented so far clashes with the state's liberal open records laws.

"It's not an arbitrary decision," said Karina Shagren, spokeswoman for the Washington Military Department, which provides administrative support for the SERC. "We just have state laws that these confidentiality agreements don't recognize, so we continue to work in good faith with the railroads to develop a compromise agreement."

Shagren said that as of Friday, one railroad active in the state -- the municipally owned short-line Tacoma Rail -- had signed an alternative agreement that would give the company 10 days to seek a court injunction to prevent the release of oil train documents to journalists and the public.

The compromise would also set up Washington's SERC as the "point person" to distribute the information to local emergency management agencies, Shagren said..

BNSF, one of two U.S. Class I railroads in Washington, said Friday that it would share the information with state officials with or without a confidentiality pact -- but the decision didn't come quickly or easily.

"As this [communication] takes effect, BNSF trusts the SERCs will follow the guidance given by the U.S. Department of Transportation to treat this data as confidential, providing it only to those with a need-to-know for security and planning purposes and with the understanding that people who receive the data will continue to treat it as confidential," the railroad said in a statement.

A Federal Railroad Administration spokesman suggested the regulator, which is part of DOT, may offer leeway to railroads still sorting out their disagreements with states.

"Although we will aggressively monitor compliance, we will also consider extenuating circumstances as railroads work with states to ensure information about the shipment of crude oil is appropriately provided," the FRA said.

Crude oil confidential

Virginia has adopted a similar system to Washington state's by setting up the state's Department of Emergency Management "Watch Center" as the point of contact for crude-by-rail info. Unlike Washington, however, Virginia has signed a confidentiality agreement with its main freight carrier CSX Corp., according to Dawn Eischen, the DEM's public affairs director.

"However, due to [Freedom of Information Act] requirements, it is CSX's responsibility to mark appropriate documents as proprietary when submitting them to us," or else they will be disclosed upon request from journalists or the public, Eischen noted in an email.

Virginia was the site of a 17-car derailment and fire in late April, when a CSX train hauling Bakken Shale crude jumped the tracks in the middle of Lynchburg and forced several hundred people to evacuate. One tank car ruptured and exploded but caused no injuries. The National Transportation Safety Board is still investigating what caused the accident.

North Dakota, which had its own fiery oil train derailment late last year near Casselton that hurt no one, also intends to keep railroads' crude-by-rail routing information out of the public eye.

But Cecily Fong, public information officer for the North Dakota Department of Emergency Services, said Thursday that "we are not planning on signing BNSF's confidentiality agreement at this point."

State officials contacted by EnergyWire explained part of their worry with such agreements is that local emergency councils might not be as careful with the data once it is distributed to them. Yet any accidental disclosures would still fall on the shoulders of the state-level emergency response commissions that signed the agreements in the first place.

New York, a key oil-by-rail transit state en route to East Coast refineries, has received a nondisclosure agreement from CSX and was reviewing it as of Friday, according to Peter Cutler, deputy commissioner of public affairs at the Division of Homeland Security and Emergency Services.

Some states have attempted to pass legislation requiring railroads to inform local officials about oil train movements, including Minnesota, which sees about eight "unit" oil trains pass through daily. Bruce Gordon, director of communications at the Minnesota Department of Public Safety, said oil train information provided by Canadian Pacific Railway Ltd. and BNSF would be posted on a secure website only accessible to local fire, police and emergency management officials.

California, which is also seeing a spike in oil train traffic, does not plan on posting the rail notifications online. Shawn Boyd, spokesman for the governor's Office of Emergency Services, declined to respond to questions about nondisclosure agreements.

"Railroads have been moving hazardous materials through California's communities for well over a century and these tankers full of Bakken crude are another commodity to which we're paying close attention," Boyd said.

Railroads have little sway over how each state handles information provided under the DOT order. However, because the order applies only to Bakken crude, railroads with exposure to other shale plays such as Colorado's Niobrara Shale are often exempt from sharing data. A spokeswoman for Union Pacific said the railroad does not meet the threshold for reporting route and volume information in Washington state, for example. Therefore, the company had no need to negotiate a confidentiality agreement with state emergency responders.

Smith of the Snohomish County Train Watch said he doubts enough information will reach the public, despite his state's stance against BNSF's initial nondisclosure pact. He also wasn't persuaded by BNSF's stated plans to share crude-by-rail routing information with or without a confidentiality agreement.

"The [DOT] order is very vague ... so we will continue to watch and we will check [railroads'] numbers," he said. "We want them to know that we're watching them, and that they can't just give some vague answer and think that we'll be happy with that."

Twitter: @BlakeSobczak | Email: bsobczak@eenews.net

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