How Industry Specs And A Federal Loophole Allow Railroads to Avoid Response Planning Oversight

Mar 17, 2014

Neither states nor the federal government have oversight over how railroads plan for responding to spills from trains carrying crude oil, meaning environmental regulators cannot identify gaps in the plans or verify a railroad's abilities to carry them out.

After a string of explosive derailments involving Bakken crude oil, states like Oregon and Washington are wrestling with what to do about that oversight gap, which the National Transportation Safety Board pointed out earlier this year will most likely leave communities bearing much of the the burden should a spill occur. The governors of each state have called for reviews of the safety, risks and oversight gaps of moving oil by rail.

In Oregon, that included an inquiry to the state’s Department of Environmental Quality about railroad spill response plans, according to Michael Zollitsch, Emergency Response Unit Leader at DEQ.

"They've asked us what our authority is and we have none at this point,” Zollitsch said.

Unlike the marine tankers, pipelines and facilities that also haul or store large quantities of oil, railroads are not required to file comprehensive response plans that meet federal standards, nor are their plans subject to review by any government agency.

A surge in oil production in the Bakken region of North Dakota and the onset of mile-long trains carrying that oil through the Northwest caught regulators off guard, but the gap doesn’t stem from the fact that regulators weren’t ready for mass shipments of oil by rail.

Railroad response plans slip between federal and state overseers largely for two reasons: The industry builds tank cars to a capacity below the threshold for requiring federal oversight, and states historically have little jurisdiction over interstate railroads.

Federal law requires only railroads shipping oil in containers larger than 42,000 gallons to file comprehensive response plans. Industry-standard tank cars in use today, most of them a type known as the DOT-111, are not built to hold that much. Typical tank cars cannot hold more than 34,500 gallons.

Ultimately, the rulemakers noted that no railroad was yet using cars that held 42,000 gallons and set the threshold there somewhat arbitrarily. That threshold applies to individual container size, despite the fact that railroads now ship crude oil in unit trains with up to 100 of those cars.

The original response plan rules specifically stated they do not preempt any state or local authorities, but state officials believe other federal rules might.

Because of interstate commerce laws, local and state officials have severely limited authority to regulate railroads that move across several states.

In 1886, the U.S. Supreme Court ruled in Wabash, St. Louis & Pacific Railway Company v. Illinois that the state's attempts to regulate railroads were unconstitutional, violating the Commerce Clause that gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Interstate Commerce Act passed a year later, along with the formation of the Interstate Commerce Commission, which regulated railroads at the time (the former agency’s duties have passed to current ones such as the FRA and the Surface Transportation Board.)

“Because of the interstate commerce things that kick in,” Zollitsch said, “I don’t think we can get authority to require the railroads to submit a plan for us for approval.”

Railroads operating in Oregon and Washington have voluntarily shared their basic response plans with DEQ and the Washington Department of Ecology.

“What I’ve seen is a fairly cooperative attitude,” Zollitsch said. “They want to convince us that they don't need more regulation, so they're being more forthright in what they have. Whether we agree or not is yet to be seen.”

After a recent community meeting in Vancouver, Wash., BNSF Railway regional spokeswoman Courtney Wallace said the railroad is in frequent communication with local authorities and responders, offering training and access to equipment, like the railroad’s 16 trailers of firefighting foam.

"I think it's incumbent on us to make sure people understand what we're doing, the measures that we're taking, that we're not waiting for someone to tell us what to do, that we are taking proactive measures,” Wallace said.

BNSF Railway also began a revision of its response plan to include more comprehensive listings of “company control points,” which detail the location of boom caches, what natural resources are at risk in each location, what site safety risks exist and what equipment is needed at each site.

However, the latest response plan the railroad filed with Oregon's DEQ shows that process has been completed for only one of several geographic subdivisions in the region.

"As we look at their plans, anything that we think that might be a gap, I think it's good that we can identify those gaps and suggest ways to close the gaps, but we can't require it,” Zollitsch said.

“Right now we’re looking at it as ‘what do they have?’ first,” he said. “Then the next step is OK, these are all the good points here, what are the gaps? I guess we’ll see how cooperative they might be in the future as we identify some of these gaps.”

Below are geographic response plans provided to the Washington Department of Ecology by BNSF Railway.

-- Tony Schick

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