DOT-111 rail cars

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.

Tar Sands by Rail Disasters: The Latest Wave in the Bomb Train Assault

With the first crash and explosion of a unit train of tar sands oil in Canada in February, we learned that the conventional wisdom among people covering the oil-by-rail industry regarding the flammability of tar sands oil has been dead wrong. A second derailment and explosion on March 7th involved synbit, which is a form of bitumen diluted with synthetic crude oil.

While there are many examples of this mischaracterization of the dangers of moving tar sands by rail that can be found in the press, here at DeSmogBlog we didn’t have to look far. In an article last year about how to make Bakken crude less dangerous we wrote that the government had plans to allow tar sands oil to be transported in the unsafe DOT-111 rail tank cars “because it is not explosive.”

While raw bitumen from the Alberta tar sands is not volatile or highly flammable, when it is diluted with natural gas condensate to form a mixture known as dilbit, which is typically done to make it easier to transport, it appears that it can be as dangerous as the Bakken crude that has now been proven to be highly flammable and explosive in multiple train derailments.

An article in Railway Age pointing out the implications of the tar-sands-by-rail accident had the ominous title “Why bitumen isn’t necessarily safer than Bakken” and concluded with the statement that “Should TSB [Transportation Safety Board] conclude that dilbit has a volatility similar to Bakken crude, as the Alberta research suggests, the hazmat classification of crude oil could be in question.”

Exploding Trains, No New Regulations, Record Industry Profits: The Oil-by-Rail Story

A month ago there was a close call for the oil-by-rail industry. As part of the Cromnibus bill that President Obama signed in December, new oil-by-rail regulations were supposed to be finalized and implemented by regulators by January 15th.

Two days before that deadline, the Pipeline and Hazardous Materials Safety Administration (PHMSA), the agency responsible for new regulations, posted new documents on their website related to recent meetings between PHMSA and various oil and rail industry lobbyists.

They did not issue a press release about these meetings, unlike the meetings a year ago when the industry volunteered to try improving its safety record and there was plenty of publicity.

And then it was announced that new regulations would once again be delayed, this time until May 2015.

Since that delay an ethanol train has derailed resulting in burning rail cars and ethanol spilling into the Mississippi River. An oil train derailed and caught fire in Gogama, Canada. And another oil train of Bakken crude oil derailed, exploded, and leaked oil into the Kanawha River near Mount Carbon, West Virginia.

Singing Industry’s Tune: How Rep. Jeff Denham Plans to Delay Oil-by-Rail Safety Improvements

Vintage effect applied to fast moving freight train

I just want to make sure that we are all singing the same tune that we have a very safe industry and we want to work together on improving that industry.”

Those were the words of Rep. Jeff Denham (R-CA), chairman of the House Subcommittee on Railroads, Pipelines, and Hazardous Materials on February 3rd at a hearing titled “How the Changing Energy Markets Will Affect U.S. Transportation.” He was directing this advice to Greg Saxton, chief engineer for rail tank car manufacturer Greenbrier.

Denham obviously had a bone to pick with Saxton because prior to the hearing the Modesto Bee, a newspaper in Denham’s home district, ran an editorial making a strong case that the existing tank cars used to transport crude oil are unsafe. The editorial, “Delays on safer rail cars are unacceptable,” didn’t mince words. It was clear on what should happen: “The DOT [Department of Transportation] should adopt rules for those cars then set deadlines to replace every single tank car in America. Our elected representatives should insist on it.”

In Modesto, the elected representative who should be insisting on that is Jeff Denham.

Modesto is also home to Greenbrier’s manufacturing facilities and the editorial quoted Saxton for its conclusion noting his position on the lack of new regulations. “We just need a decision. Twenty years is too long.”

This is not the tune that Chairman Denham wants everyone to be singing. In his comments to Saxton at the hearing he explained his intent.

Oil-by-Rail Reality: Watch What Industry Does, Not What They Say

In the past month, there have been numerous public relations efforts suggesting that much is being done to improve oil by rail safety. Unfortunately, it seems these efforts will not involve much more than press releases and hollow promises.”

Those words were first published on DeSmogBlog in March of last year in an article titled Why Nothing Will Happen On Oil by Rail Safety.

In that article, one particular public relations effort was highlighted:

“One of the more popular talking points in the recent PR effort was that BNSF, the railroad that is the largest transporter of oil by rail, had volunteered to buy 5,000 new rail tank cars that exceed any existing safety standard.”

This statement was referring to articles such as the one in the Wall Street Journal last February stating, “BNSF Railway said it plans to buy as many as 5,000 new tank cars to transport crude oil, an unusual move that marks the latest effort by the rail industry to improve safety after a spate of accidents.” Similar articles appeared in Reuters (“Exclusive: BNSF to move into tank car ownership with safer oil fleet”) and CNBC.

It was a clear message. The rail industry was not waiting on new regulations to improve safety and would take steps immediately to make the movement of oil by rail safer. Tough to argue with that, right?

Except it was nothing more than a public relations campaign.

Interactive Map and Report on Oil-By-Rail, "Booming Bomb Train Industry"

A new report and website released today by Oil Change International provides a comprehensive overview of the current oil-by-rail industry in North America and it isn’t a pretty picture.

The report and interactive map of the “booming bomb train industry” capture the alarming scope of this very recent development.  As the report points out, 70 times as much oil was moved by rail in 2014 as there was in 2005. That rapid expansion is continuing, placing more North American communities at risk.  

This analysis shows just how out of control the oil industry is in North America today. Regulators are unable to keep up with the industry’s expansion-at-any-cost mentality, and public safety is playing second fiddle to industry profits,” said Lorne Stockman, Research Director of Oil Change International and author of the report.

According to the report, Runaway Train: The Reckless Expansion of Crude By Rail in North America, approximately one million barrels of oil per day are moved on 135 trains of 100 cars or more each day in America.  If all of the currently planned development of oil-by-rail facilities occurs, the full capacity to move oil would be five times that amount.  

This is what the All of the Above Energy Strategy looks like – a runaway train headed straight for North American communities,” Stockman said.

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This massive investment by the oil and rail industries to expand their capacity to move oil by rail is one of the main reasons that improving oil-by-rail safety is unlikely when it comes to the unsafe DOT-111 tank cars.  These cars currently make up approximately 70% of the oil-by-rail tank car fleet and there is currently a two to three year waiting list for companies wanting new tank cars.  

How This U.S. Rail Safety Measure Has Been Delayed for 44 Years … And Counting

NTSB Chairman Deborah Hersman

On August 20, 1969, two Penn Central commuter trains collided head-on near Darien, Conn.  Four people were killed and 43 were injured. The crash led the National Transportation Safety Board (NTSB) to recommend that railroads implement new safety technology called positive train control — a system for monitoring and controlling train movements to increase safety.

The NTSB first recommended positive train control in 1970. In 2008, after another fatal train collision that killed 25 people, Congress finally passed the Rail Safety Improvement Act, which mandated positive train control be implemented by the railroad industry by the end of 2015. 

Fast-forward another six years to multiple congressional hearings in recent months, during which the railroads have informed Congress that positive train control simply won’t be implemented by the end of 2015. It’s been 44 years since the NTSB first recommended positive train control to improve rail safety in the U.S. and it is still not being used. 

Why Nothing Will Happen On Oil by Rail Safety

In the past month, there have been numerous public relations efforts suggesting that much is being done to improve oil by rail safety. Unfortunately, it seems these efforts will not involve much more than press releases and hollow promises, as regulators have made no meaningful changes to a broken and ineffective regulatory system.  

That approach, combined with the realities of the rail tank car industry, basically ensure that oil will be transported in the unsafe DOT-111 tank cars for many years to come, despite testimony at a recent congressional hearing from Robert Sumwalt of the National Transportation Safety Board (NTSB).

Sumwalt testified that, “multiple recent serious and fatal accidents reflect substantial shortcomings in tank car design that create an unacceptable public risk.”  

Unacceptable to the public, but apparently perfectly acceptable to the industry.

Bureaucrat Ducks Vital Question on Flawed DOT-111 Tank Cars at Oil By Rail Safety Hearing

On Wednesday February 26th, the long-awaited congressional hearing on oil-by-rail safety finally occurred. The main portion of the hearing featured representatives from the relevant government agencies as well as industry, such as the American Petroleum Institute’s President and CEO, Jack Gerard.  

For those following crude-by-rail safety, there are several pressing issues, but the one question everyone wants to know the answer to is when will the government stop allowing the inferior and unsafe DOT-111 tank cars to be used to ship crude oil?  

At the hearing, Robert Sumwalt of the National Transportation Safety Board (NTSB
testified that “multiple recent serious and fatal accidents reflect substantial shortcomings in tank car design that create an unacceptable public risk.”

Not much of substance was covered in the hours-long hearing but there was one exchange between Congressman Peter DeFazio of Oregon and Cynthia Quarterman, the Administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA), that shed light on where this all stands.  

Congressman DeFazio asked the question about the DOT-111s several times — and Administrator Quarterman refused to answer several times. The video below highlights the heated exchange which ends with Congressman Defazio cutting off Adminstrator Quarterman mid-sentence as it is clear she is not going to answer, thus highlighting the extent of the problem.  

The one official who can actually make something happen when it comes to improving rail car safety refuses to answer questions on when that might get done, despite the fact that the flaws in the existing DOT-111 tank cars have been known for over a decade and members of congress have been requesting this hearing for over six months. 

Past Time to Close Loophole That Exempts Oil by Rail Companies from Spill Response Planning

In 2013, with the rapid expansion in the use of rail to transport crude oil, we learned that there was a huge increase in the the amount of oil spilled as a result of rail incidents.  

Just two weeks ago, a train
derailed near Pittsburg and spilled 4,000 gallons.  More than 1.15 million gallons of crude spilled from rail cars in 2013.  And this does not include the 1.6 million gallons that spilled in July of 2013 in Lac-Megantic in Canada.   

To put this in perspective, the 2010 Marshall Michigan Pipeline spill — currently the largest and most costly spill on land in US history according to the National Transportation Safety Board (NTSB) — only spilled 843,000 gallons.

These rolling unit trains of crude oil can be carrying over three million gallons of crude oil at one time. The train that derailed and exploded in Aliceville, Alabama in November 2013, was
carrying 2.7 million gallons of Bakken crude oil.  

However, as noted in the recent NTSB recommendations, thanks to a loophole in regulations set up in 1996, the companies transporting this oil by rail are exempt from having comprehensive spill response plans.  According to the January 23, 2014 Safety Recommendation from the NTSB (link to PDF):

oil spill response planning requirements for rail transportation of oil/petroleum products are practically nonexistent compared with other modes of transportation.”

Estimates are that 90% of the oil produced in the Bakken fields in 2014 will be transported by rail. This is up from a rate of 63% in September of 2013.  And as the NTSB notes, current regulations do not require the companies moving this crude to have comprehensive spill response plans despite the amounts of crude oil they are moving.


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