Battle over rail secrecy intensifies

Toronto Star | June 15, 2014 | Column by Jessica McDiarmid

The tug of war continues between an industry under intense scrutiny after Lac-Mégantic and an increasingly demanding public with a keen interest in what rides the rails past their homes.

PAUL CHIASSON / THE CANADIAN PRESS FILE PHOTO  Smoke rises from flaming railway cars that were carrying crude oil after a train derailed in downtown Lac-Mégantic, Que., killing 47 people. The rail industry has been under heavy scrutiny since, with the public demanding disclosure of information about dangerous goods being transported through their communities.

American railroads ordered to notify state governments about shipments of explosive crude oil have dug in their heels, demanding officials sign confidentiality agreements to ensure the information doesn’t reach the public.

Canadian governments have been reluctant to demand industry disclose data publicly here, but a handful of American states are refusing to sign the nondisclosure contracts, arguing, in some, that the agreements violate public records laws and, in others, that the community has a right to the information.

“Our state statutes prohibit us from signing,” Lori Getter of Wisconsin Emergency Management told The Associated Press. “It will help the responders to make sure they are fully prepared and trained to a potential incident. But it’s also good to let the community know.”

It’s the latest lurch in the ongoing tug-of-war between an industry under intense scrutiny after last summer’s train disaster in Lac-Mégantic, Que., killed 47 people, and an increasingly demanding public with a keen interest in what is riding the rails past their homes. The issue has been front and centre in municipalities across North America, including the GTA, which the ill-fated cargo that would later decimate Lac-Mégantic passed through.

The U.S. Department of Transportation issued an emergency order in May requiring railroads that haul more than about 35 tank cars of volatile crude oil from the Bakken oilfields to provide state emergency planning authorities with information on trains’ routes, volume and frequency.

Railroad giants BNSF, Union Pacific and CSX balked, arguing the information shouldn’t go beyond select state officials due to concerns about security and competitiveness. But at least half a dozen states — including Wisconsin, Washington and the heart of the American oil boom, North Dakota — have refused to sign confidentiality agreements with the companies. Several others are mulling the legality of the agreements.

Calgary-headquartered Canadian Pacific Rail, a major transporter of Bakken crude in Canada and the U.S., said it provided the information along with a confidentiality notice that it’s only to be used for emergency planning or response.

“It is CP’s position that state emergency officials, by accepting the notification, are acknowledging and agreeing to the nondisclosure of this information . . .” wrote spokesperson Ed Greenberg in an email.

The American order goes further than a November 2013 emergency directive from Transport Canada requiring railroads provide municipalities with information about the dangerous goods moving through them. In Canada, railroads must now supply a select few municipal officials with historical data — to be kept secret — about dangerous goods, such as crude oil from the Bakken formation that stretches across North Dakota and parts of Montana and Saskatchewan.

That oil, extracted by unconventional methods like hydraulic fracturing, has been involved in a string of explosions in the wake of Lac-Mégantic, drawing the attention of investigators and regulators who later concluded that it’s far more volatile than traditional crude oil.

Shipments of crude oil by rail have risen dramatically across Canada in the past five years — from 500 carloads in 2009 to some 140,000 last year — with booming oilfields in western Canada and the Bakken region producing more than limited pipeline infrastructure can move.

While the Federation of Canadian Municipalities has endorsed Transport Canada’s response, some municipalities have pushed for rules that go further.

Ajax Mayor Steve Parish said transparency is vital to ensure good regulation, safety measures and emergency response.

“A climate of secrecy does not further public safety and that’s the primary obligation of local government,” said Parish. “The general principle should be one of disclosure.”

In April, Toronto city council adopted a motion calling for railroads to make information on dangerous goods available to the public in the municipalities it passes through, among other demands. The industry, and the federal government that regulates it, contend that data on dangerous goods shipments could represent a security threat if it fell into the wrong hands. But critics of that position point out that, because cars carrying dangerous goods are marked with a four-digit identification number, it’s not that difficult to find out anyway.

“The railways and the Canadian government have never fully explained why it is a security concern to share basic information with the public,” said city councillor Josh Matlow, who introduced the motion. “I believe that the public has a right to have access to information about what’s going through the neighbourhoods in which they and their families live.”

That information should be shared with communities, said Helen Vassilakos, co-founder of the Toronto neighbourhood group, Safe Rail Communities.

“The public needs to know what’s happening in their communities,” said Vassilakos. “We do have a right to know what’s going through our communities so we can make informed decisions about where we live and what we need to do if there’s an emergency.”

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