Oregon Oil Train Bill Moves To Floor, With Key Regulation Removed Again

Jun 28, 2017
Originally published on June 28, 2017 9:57 pm

For the second time since 2015, the Oregon Legislature has stripped language out of a bill that would have increased the state’s regulation of oil trains.

Oregon has the weakest regulations among West Coast states.

A year after a Union Pacific oil train derailed and caught fire in the Columbia River Gorge town of Mosier, lawmakers are advancing to the House and Senate floors House Bill 2131, sponsored by Rep. Barbara Smith Warner, D-Portland.

The bill moves money toward oil train emergency preparations, particularly toward known gaps in Central Oregon. Smith Warner called the bill “a huge step in our ability to maintain safer routes and safer communities.”

But it fails to give the state authority over railroads' emergency plans, and adds layers of secrecy for railroad operations.

“I believe the leadership and also the bill sponsor buckled under railroad pressure. Even just one year after the derailment and fire in Mosier, they started weakening the bill,” said Michael Lang, conservation director for Friends of the Columbia Gorge.

The original version of HB 2131 would have given the state’s Department of Environmental Quality the authority to approve or deny railroad contingency plans for oil train spills. It also would have required tests and drills to make sure railroads could execute the plans.

That’s the same regulatory oversight Oregon has over other forms of oil transport, such as pipelines and marine terminals.

The original bill also would have created a fee on rail carriers. The estimated $375,000 per year generated by the fee would have gone toward oil train emergency response planning.

Railroads lobbied against the bill and claimed, as they have in previous sessions, that it was invalidated by federal railroad safety and commerce laws. In later amendments, the bill was rewritten to remove the fee and DEQ’s legal authority over the railroads.

The current version specifies railroad contingency plans submitted to the state are not subject to DEQ approval. If the plans do not meet state standards, the department cannot impose new requirements. Instead, it can try for changes “by conference, conciliation or persuasion.”

The bill also specifies railroads can move oil trains through Oregon even if they fail to provide a plan.

“Union Pacific worked hand-in-hand with legislative leadership this session in a bipartisan effort to continue enhancing safe rail movement of crude oil,” Union Pacific spokesman Justin Jacobs said.

Smith Warner said after Mosier, there were calls for major rule changes on oil trains, but she and other lawmakers ran up against limitations in federal law.

“I cannot emphasize enough how challenging it is to do state level work with railroads. Because they have the power of 200 years of federal preemption legislation on their side,” she said.

Other states have found a way past some of those limitations, including California and Washington.

“Washington and California get the same plan. Legally, they operate in a similar area. They ask for the plans, they receive the plans," Smith Warner said. "They cannot prohibit them from running through the state, same as us.”

Washington does go a step beyond just receiving plans, however. Regulators there have the ability to approve or deny plans. If railroads do not comply, they can issue civil penalties.

Smith Warner and others worried how such laws would hold up in court.

The legislative council report on HB 2131 said it largely tracks with current laws in Washington and Minnesota, which have not yet been challenged. But the report added “it is possible that certain provisions of the bill, if enacted, would face scrutiny in court.”

Lawmakers later removed those pieces, the same ones railroads opposed. They also added some that the railroads wanted.

HB 2131 would conceal information railroads provide to the state from public scrutiny.

It states that railroad contingency oil spill plans provided to DEQ would be exempt from public records requests and not disclosed to anyone outside of a few select government agencies.

In addition, it states, “no subpoena or judicial order may be issued compelling the disclosure of a contingency plan, except when relevant to a proceeding where compliance by an owner or operator of a high hazard train route with this section is to be adjudicated.”

That same secrecy provision is established for a section of the bill requiring railroads to provide proof of financial responsibility, showing they can cover the cost of an oil train derailment. Those would be filed with the Oregon State Fire Marshal.

These disclosure exemptions drew harsh criticism both from environmental advocates and from trial lawyers, who otherwise applauded Smith Warner’s efforts to tackle oil trains.

“In the next catastrophe, if people are seriously injured or die because of the negligence of the railroad, they should have access to information they need to prove the wrongdoing,” wrote Paul Bovarnick and Arthur Towers of the Oregon Trial Lawyers Association.

“This is a response to an issue the railroads had in Washington." Smith Warner said. “They submitted the plans, and indeed there is federally confidential information in there. They asked us if we could resolve that on the front end.”

Washington not only discloses the plans but incorporates public comment as part of the plan approval process.

Linda Pilkey-Jarvis, preparedness manager for the Washington Department of Ecology, said only one railroad, Union Pacific, took issue with the public disclosure. The agency and railroad eventually worked past it, and Washington still discloses Union Pacific’s plan.

“It’s good for people to be able to see the content of a plan, because they have confidence from seeing a response system in place,” Pilkey-Jarvis said.

HB 2131 is the second attempt Smith Warner has made to increase the state’s preparedness for oil trains.

In 2015, Smith Warner sponsored a bill that also would have given the state the authority to regulate oil train spill plans. It, too, was gutted.

But she claimed an incremental victory in getting the State Fire Marshal to increase training and resources for oil trains, which she said were crucial in the response to Mosier.

This year, her bill contains other pieces she also sees as victories. That includes an allocation $918,000 over the next two years for oil train preparedness. It would fund a position at the State Fire Marshall to train local responders.

It would also fund two positions at the Department of Environment of Quality for spill planning along oil train routes. Those positions will enable DEQ to expand oil train spill planning for areas currently lacking, which include important waterways such as the Deschutes River.

“The biggest concern is if we have oil that hits some of our rivers that support our salmon fisheries, those could be damaged for decades,” said Bruce Gilles, cleanup and emergency response manager for Oregon DEQ.

In the two years he has funding, Gilles said his department needs to write rules and establish planning along 600 miles of rail.

“Two positions," he said. "It’s going to be very difficult to accomplish what needs to get done.”

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