Last month, the Department of Transportation ordered railroads to start giving state emergency response teams basic information about trains hauling crude oil through their cities and towns. The idea is that if armed with at least some details on these shipments — when they’re arriving, how much oil they’re hauling — state emergency teams can be better prepared just in case something happens. Like a train derails. Or a giant, fireball-inducing explosion erupts.
But railroads aren’t so keen on providing that information. Not to state emergency responders, and not even to federal transportation officials. As the Associated Press reports, companies such as BNSF, CSX, and Union Pacific are asking states to sign strict non-disclosure agreements promising not to make the information public. Some states are complying. Others aren’t.
Officials in Wisconsin, Montana, Illinois, North Dakota, Idaho, and Washington have all declined to sign the agreements, AP reports, while California, Louisiana, and New Jersey have agreed to keep the information secure. Colorado, South Dakota, Iowa, Oregon, and New York are reviewing the requests.
At issue is whether the non-disclosure agreements violate state sunshine laws governing open access to public records. Officials in Wisconsin and Washington say that they clearly do. Under the agreements, the information railroads provide states would be shielded from Freedom of Information Act requests, and unavailable to citizens and journalists. For its part, the DOT says it has no problem with railroads asking for these protections.
In some cases, states are crafting specific arrangements with railroads that get around FOIA laws. Under an agreement with Virginia, CSX must mark documents as proprietary when submitting them to state emergency officials. “Any information that CSX has not deemed proprietary can be released outside of emergency services,” Dawn Eischen, a spokeswoman with the Virginia Department of Emergency Management, wrote in an e-mail. That way, since state officials aren’t themselves marking the data for non-public use, they’re presumably still in compliance with FOIA laws. Seems semantic but OK.
When a CSX train derailed in downtown Lynchburg, Va., exploding and spilling 30,000 gallons of oil into the James River, no one was hurt but emergency crews were caught unprepared. And city officials admitted to having no idea that crude oil was even traveling through town on that day in April.
A week later the DOT issued an emergency order requiring railroads to tell state emergency response teams how much crude they’re hauling and the exact route they intend to take. Railroads also have to provide local officials with contact information of at least one person who’s familiar with the load. The order pertains only to trains carrying more than 1 million gallons of crude from the Bakken region of North Dakota.
The deadline to comply passed on June 7. Railroads that missed it were supposed to be banned from hauling Bakken crude and face fines up to $175,000 a day. But it doesn’t appear that either is happening yet. Kevin Thompson, a spokesman at the Federal Railroad Administration, said that the DOT was granting railroads a “period of discretion” in some cases while they negotiated with a handful of states. The period would last a “few days,” he said. As of Monday, no fines had been levied.
And yet, according to Virginia officials, CSX is already in violation of the order. Despite the state’s agreement with CSX, Dawn Eischen said that as of Monday afternoon the state still had not gotten any transport notifications from CSX. Thompson, the FRA spokesman, said he was unaware of that. CSX did not reply to questions as to whether it was still shipping crude through the state or if it had been notified by the DOT that it was in violation of the emergency order. (In an earlier e-mail, a CSX spokesperson said that it had provided oil train information to all states it operates in as required under the emergency order.)
Meanwhile in Washington state, emergency officials have received routing and shipment info from BNSF despite having balked at signing the railroad’s non-disclosure agreement. So while states that played hardball and refused to sign the non-disclosure agreement are getting the info they need, those that played along are getting stiffed.
So why all the fuss to begin with? Why are railroads fighting so hard to keep this information out of the public domain? A couple possibilities: For one, they themselves are often bound by strict non-disclosure agreements with the oil companies whose crude they’re hauling. Maybe they’re just looking to extend the secrecy on.
Railroads often say that making their oil activities public would expose them to security and competitive risks, but that seems overstated and beyond the point. Over the past four years there’s been a triple-digit increase in the amount of oil being railed across the U.S. It’s no secret that the vast majority of it comes out of North Dakota. Putting that information in the public domain would no more increase the risk of an attack than keeping it secret. As for competitive risk, that shouldn’t even be an issue if the point is improving public safety.
There is one risk that railroads could be worried about: the possibility of regulation. Oil is not subject to the same strict routing standards as other hazardous chemicals. While a train filled with toxic chlorine has to be routed far away from populated areas, often on a competing company’s rail network, an oil train can chug right through downtown in the middle of the day. Citizen groups in several states are already starting to mobilize and form watch parties stationed along tracks to count the oil trains.
Once more people realize just how close they are to millions of barrels of crude oil every day, it’s safe to say that the push to keep a better eye on this will only grow louder.
