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BNSF — the top rail carrier of oil obtained via hydraulic fracturing (“fracking”) in North Dakota's Bakken Shale basin — denied all charges. The company also argued that some federal laws protect the company from liability for injuries allegedly suffered by Thompson.
The Answer to the Complaint signals the likelihood of a protracted legal battle ahead. Lee A. Miller, a Minneapolis, Minnesota-based attorney representing BNSF against Thompson, filed the company's response in Cass County, North Dakota.
Miller argued that the damages allegedly suffered by Thompson — which include Post-Traumatic Stress Disorder (PTSD) from living through and running away from the December 2013 Casselton, North Dakota oil train explosion — were “caused or contributed to by Plaintiff's own contributory or sole fault.”
He also argued that the explosion occurred due to “unknown causes for which BNSF is not responsible” and “are the result of acts or omissions of persons, entities, or corporations other than BNSF…over whom” they have “no control or right to control at the time of the alleged incident.”
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.
Image Credit: State of North Dakota District Court; East Central Judicial District
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.
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.
While many states around the U.S. have released information to the public about the frequency and routes of trains carrying oil obtained from hydraulic fracturing (“fracking”) in North Dakota’s Bakken Shale basin, holdouts still remain.
Why the delay? Homeland security concerns, claim some companies.
In an ongoing Maryland court case over the issue of transparency for in-state oil-by-rail routes, a July 23 affidavit from Carl E. Carbaugh — director of infrastructure security for Norfolk Southern — goes into extensive detail about the supposed risk presented by terrorism attacks on “Bomb Trains.”
In so doing, Carbaugh mentions Al-Qaeda.
“The most recent edition of Inspire magazine, March 2014, the online, English-language propaganda publication of [Al-Qaeda in the Arabian Peninsula], presents a full-page collage depicting varied images…in order to construct an explosive device,” reads Carbaugh’s affidavit.
“Among these images are a derailed passenger train and a partly covered note paper listing cities in the [U.S.] as well as the terms ‘Dakota’ and ‘Train crude oil.’”
Carbaugh also cited Osama bin Laden, the late Al-Qaeda international ring-leader, in his affidavit.
“Among the materials seized in the May 1, 2011, raid on Osama bin Laden’s compound in Abbottabad, Pakistan, were notes indicating interest in ‘tipping’ or ‘toppling’ trains — that is causing their derailment,” Carbaugh wrote.
Osama Bin Laden Compound Diagram; Image Credit: Wikimedia Commons
Burlington Northern Santa Fe (BNSF) recently said it would proceed with plans to increase speeds for oil-by-rail unit trains in Devil’s Lake, N.D. to 60 MPH from 30 MPH, despite opposition from local officials.
BNSF’s announcement came merely a week after the Obama Administration announced its proposed regulations for trains carrying oil obtained via hydraulic fracturing (“fracking”) from North Dakota's Bakken Shale basin.
The rail industry’s position on speed limits for “bomb trains” is simple: they continuously claim velocity has nothing to do with oil-by-rail accidents or safety.
For example, Big Rail — as revealed by DeSmogBlog — lobbied against all proposed oil train speed reductions in its dozen or so private meetings at the Obama White House before the unveiling of the proposed oil-by-rail regulations.
Recent statements by rail industry CEOs during investor calls put the heads of many companies on record opposing oil-by-rail speed limits for the first time.
This is a guest post by Cole Stangler.
For decades, the U.S. railroad industry has successfully shed labor costs by shifting to smaller and smaller operating crews. Now, it’s on the verge of what was once an unthinkable victory: single-member crews, even on dangerous oil trains.
A tentative agreement reached by BNSF Railway and the Transportation Division of the Sheet Metal, Air, Rail and Transportation (SMART) union would allow a single engineer to operate most of the company’s routes. It would mark a dramatic change to a labor contract that covers about 3,000 workers, or 60 percent of the BNSF system.
It’s not just bad news for workers. The contract has major safety implications—especially amid North America’s dangerous, and sometimes deadly, crude-by-rail boom. Last year’s Bakken shale oil train derailment and explosion in Lac Mégantic, Quebec, which killed 47 people, brought increased scrutiny to oil trains.
In response, Canadian regulators outlawed one-person crews on trains carrying hazardous materials. (A single engineer was in charge of the ill-fated train, although it was unmanned when it rolled into the town center.)
BNSF spokesperson Roxanne Butler told DeSmogBlog the new contract would not apply to so-called “key trains” — loads of crude oil, ethanol and other hazardous materials.
As it stands, she says, the company mandates two-member crews for such shipments , and those are the terms of BNSF’s existing labor agreement.
But there is no federal law on the books that requires two-person rail crews for shipments of dangerous goods. The Federal Railway Administration (FRA) is expected to issue a proposed rule on the subject by the end of the year.
Workers worry that without contract guarantees, and no federal protections in place, BNSF will make the cost-cutting shift to one-person crews.
“If you look at the contract, there’s nothing that shows they will exempt oil trains,” says Ron Kaminkow, general secretary of Railroad Workers United, a labor group that opposes single-employee freight trains.
“[BNSF] will do whatever they want to do,” says Robert Hill, a BNSF engineer based in Hauser, Idaho, roughly twenty miles east of Spokane, a major rail hub for the Northwest. “At some point, you eventually will see a one-man crew on these oil [trains]. There’s nothing specific in their company policy that says they have to have two-man crews on oil trains.”
Documents released to DeSmogBlog by the Washington State Military Department reveal that both the Department of Transportation (DOT) and rail companies attempted to pressure states including Washington to keep information about Bakken crude oil trains from the public.
As previously reported on DeSmogBlog, while rail companies have been asserting that information about the frequency and routes of Bakken oil trains was “security sensitive,” the Federal Railroad Administration and the Transportation Security Administration were saying the opposite.
However, that didn’t stop the Department of Transportation from pressuring states like Washington only to release information on a “need to know” basis. A document provided to the states by the department argues against the public’s right to know:
This data is intended for those persons with a need-to-know; that is, first responders at the state and local level, as well other appropriate emergency response planners. DOT expects the SERCs 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.
The Department of Transportation went on to explain why it thought it was “appropriate” to keep the oil train information from the public.
DeSmogBlog is publishing the first documents ever obtained from the Wisconsin government revealing routes for oil-by-rail trains in the state carrying oil obtained via hydraulic fracturing (“fracking”) in the Bakken Shale basin.
The information was initially submitted to the U.S. Department of Transportation (DOT) under the auspices of a May 7 Emergency Order, which both the federal government and the rail industry initially argued should only be released to those with a “need to know” and not the public at-large.
The Wisconsin documents show the three companies that send Bakken crude trains through the state — Burlington Northern Santa Fe (BNSF), Union Pacific and Canadian Pacific — all initially argued routes are “sensitive security information” only to be seen by those with a “need to know.”
As covered in a previous DeSmogBlog article revealing the routes of oil trains traveling through North Dakota for the first time, the rail industry used this same line of legal argument there and beyond.