Take Two: Albany’s Oil-by-Rail Facilities Must Do New Environmental Review

The people of Albany, New York, got some good news last Friday about their port's oil-by-rail facilities.

“Global Companies must restart its environmental review process, given the significant new information about the benzene levels in Albany’s South End community and the hazards of crude oil transport,” said Department of Environmental Conservation (DEC) Commissioner Basil Seggos. “DEC will ensure that this process includes a meaningful and thorough opportunity for public engagement.” 

Global Companies and Buckeye Partners are the two companies operating oil-by-rail facilities at the Port of Albany. While the letter last week was addressed to Global, the DEC has announced both will have to restart the environmental review process.

In 2014 DeSmog reported that the “residents of the Ezra Prentice apartments in Albany, N.Y., have been complaining about air quality issues ever since the oil trains showed up in the Port of Albany two years ago.”

Rail Safety Report Card: Only 225 Of Over 100,000 Unsafe Tank Cars Were Retrofitted in First Year

A year ago, when Federal regulators announced new rules for “high hazard” trains moving crude oil and ethanol, the oil industry protested that the rules were too strict. The main point of contention made by the American Petroleum Institute (API) was that the requirement to retrofit the unsafe DOT-111 and DOT-1232 tank cars within ten years did not allow enough time to get the job done.

Meanwhile, according to information recently provided to DeSmog by the Association of American Railroads, only 225 of the tank cars have been retrofitted in the past year. So, the API may have been onto something because at that rate it will take roughly 500 years to retrofit the entire fleet of DOT-111s and CPC-1232s based on government and industry estimates of fleet size of approximately 110,000.

New York Serves As Battleground for Oil and Gas Infrastructure Fights

When New York state banned fracking in 2015, it was a blow to the oil and gas industry. But it didn’t slow industry plans to continue to build out new oil and gas infrastructure in New York.

However, in another setback for the industry, Governor Cuomo’s administration just denied permits for the proposed Constitution pipeline — a pipeline that would have brought fracked gas from Pennsylvania into New York — which has effectively killed the project.

Pipeline giant Kinder Morgan also just announced it is shelving plans to build the natural gas pipeline known as Northeast Direct due to “inadequate capacity commitments from prospective customers.”  

These two decisions were celebrated by the many concerned citizens in New York who have been fighting new oil and gas infrastructure in the state.

Are US Regulators Trying to Cover Up Influence Of Lobbyists On New Oil-By-Rail Regulations?

It’s no secret that the oil and rail industries lobbied the Obama Administration heavily during the creation of new oil-by-rail regulations released this past May, with lobbyists reportedly not even taking a break the day after a major oil train accident.

But just how much influence did lobbyists actually have in the drafting of the regulations?

Environmentalists who criticize the new rules as far too weak to stop business-as-usual — which has already resulted in five oil train explosions so far this year — are endeavoring to find out by submitting Freedom of Information Act requests for correspondence between lobbyists and five federal agencies within the US Department of Transportation that worked on the oil train safety rules.

So far, they say, they’ve been stonewalled by the Obama Administration.

Minority, Low-Income Communities Bear Disproportionate Share Of Risk From Oil Trains In California

People of color and low-income communities are bearing a disproportionate burden of risk from dangerous oil trains rolling through California, according to a new report by ForestEthics and Communities for a Better Environment.

Called “Crude Injustice On The Rails,” the report found that 80 percent of the 5.5 million Californians with homes in the oil train blast zone — the one-mile region around train tracks that would need to be evacuated in the event of an oil train derailment, explosion and fire — live in communities with predominantly minority, low-income or non-English speaking households.

North Dakota Town Evacuated After Oil Train Derailment, Explosion

An oil train derailment and subsequent fire early this morning near Heimdal, a rural town in central North Dakota, has led to the evacuation of nearby residents. The Associated Press reports that the accident occurred at 7:30am and that ten tanker cars of a BNSF Railway train were burning, “creating thick black smoke.” There are no reports at this time of anyone having been hurt in the explosion or its aftermath.

Firefighters and hazardous materials teams have been sent to the scene, and a team of investigators from the Federal Railroad Administration (FRA) is expected to arrive by mid-day, while the Environmental Protection Agency is reportedly sending someone to monitor nearby waterways for contamination, per the AP.

BNSF Engineer Who Manned Exploding North Dakota "Bomb Train" Sues Former Employer

A Burlington Northern Santa Fe (BNSF) employee who worked as a locomotive engineer on the company's oil-by-rail train that exploded in rural Casselton, North Dakota in December 2013 has sued his former employer

Filed in Cass County, the plaintiff Bryan Thompson alleges he “was caused to suffer and continues to suffer severe and permanent injuries and damages,” including but not limited to ongoing Post-Traumatic Stress Disorder (PTSD) issues.

Thompson's attorney, Thomas Flaskamp, told DeSmogBlog he “delayed filing [the lawsuit until now] primarily to get an indication as to the direction of where Mr. Thompson's care and treatment for his PTSD arising out of the incident was heading,” which he says is still being treated by a psychiatrist.

The lawsuit is the first of its kind in the oil-by-rail world, the only time to date that someone working on an exploding oil train has taken legal action against his employer using the Federal Employers' Liability Act.

BNSF Engineer Casselton Lawsuit

Image Credit: State of North Dakota District Court; East Central Judicial District

Purposeful Distraction? Unpacking the Oil Refiners' "Bomb Trains" Lawsuit vs. Warren Buffett's BNSF

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.

Rail Industry Lobbied Against New Oil-by-Rail Safety Regulations The Day After Rail Accident

With the recent run of exploding oil train accidents, it isn’t surprising that the rail industry has publicly expressed concern about hauling highly flammable oils like Bakken light crude and diluted tar sands. But that's all the industry has done: express concern. It certainly hasn't done anything to act on its concerns.

For instance, Hunter Harrison, CEO of Canadian Pacific railway and the man who is on record as saying that regulators “overreacted” to the Lac-Mégantic rail disaster, recently said Canadian Pacific might get out of the oil hauling business.

“Our board of directors looked at this very carefully and said, ‘what kind of exposure do we have and what kind of exposure are we [exposing] the public to by hauling some of these commodities?’” Harrison told BNN television. “And in spite of the bottom line—and I was very proud—we’ve sat back and said we might get out of this business.”

Of course, Hunter Harrison is a savvy businessman who has a record of relentless pursuit of profit. Harrison knows full well that the common carrier laws that apply to rail shipments make it so that he would have to shut down Canadian Pacific if he wanted to get out of the oil hauling business. Which isn’t likely.

What is more likely is that, just like rail company BNSF’s early 2014 public relations stunt in which the company said it was buying 5,000 safer rail cars to haul oil but then never did, Harrison is also just feeding the media a good story.

Because two days after Harrison was telling the media he wanted out of the oil hauling business, and one day after the exploding oil train accident in Galena, Illinois, Glen Wilson, Canadian Pacific’s Vice President of Safety, Environmental and Regulatory Affairs, was in Washington, D.C. lobbying against new oil train safety regulations.

Federal Court Order: Explosive DOT-111 "Bomb Train" Oil Tank Cars Can Continue to Roll

A U.S. federal court has ordered a halt in proceedings until May in a case centering around oil-by-rail tankers pitting the Sierra Club and ForestEthics against the U.S. Department of Transportation (DOT). As a result, potentially explosive DOT-111 oil tank cars, dubbed “bomb trains” by activists, can continue to roll through towns and cities across the U.S. indefinitely.  

“The briefing schedule previously established by the court is vacated,” wrote Chris Goelz, a mediator for the U.S. Court of Appeals for the Ninth Circuit. “This appeal is stayed until May 12, 2015, or pending publication in the Federal Register of the final tank car standards and phase out of DOT-111 tank cars, whichever occurs first.”

Order to Delay DOT-111 Bomb Trains Case
Image Credit: U.S. Court of Appeals for the Ninth Circuit

Filing its initial petition for review on December 2, the Sierra Club/ForestEthics lawsuit had barely gotten off the ground before being delayed.


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