Department of Transportation to continue mandating oil train disclosures, but states vary widely on requirements

Regulators will keep rules requiring the public disclosure of certain information about trains transporting crude oil intact, the Pipeline and Hazardous Materials Safety Administration announced last week.

The Department of Transportation had previously announced on May 1 that it would phase out the temporary rules, which were enacted on May 7, 2014, a week after a major oil train derailment in Lynchburg, Va.

Since the temporary rules were enacted, media outlets have used the information to report on the frequency of trains passing through particular areas with large volumes of crude oil and to question states’ rail safety preparedness.

Had the rules been phased out, railroads would have provided FOIA-exempt information directly to local officials and would have no longer have been required to give state emergency response commissions FOIA-eligible information about weekly shipments of one million or gallons of crude oil from the Bakken shale, which is in North Dakota and Montana.

Journalists have been giving oil trains more scrutiny as the number of spills from these trains has increased from an average of 25 annually from 1975-2012 to 141 in 2014. The recent Amtrak derailment further highlighted the potential hazards surrounding oil trains when the Amtrak train reportedly came to a halt within yards of a number of oil trains.

Oil from the Bakken shale is about twice as volatile as other crude oil, and 70 percent of Bakken shale oil is transported via rail, compared to only 10 percent of all American oil.

The reinstatement by the Department of Transportation comes after pressure by a group of eight senators who sent a letter to Transportation Secretary Anthony Foxx. Railroads had been pressuring the Department of Transportation to drop the rules, McClatchy DC reported in October. The Pipeline and Hazardous Materials Administration said it will now work on codifying the temporary rules permanently.

“That was largely in response to emergency responders and their concerns about not having information,” Mollie Matteson, a senior scientist for the Center for Biological Diversity, said.

The news about the permanent adoptions of the rules comes amid a particularly active period for oil train and pipeline transparency nationally.

Across the board, the rhetoric of national security has been employed to limit the public’s access to information, even though the Federal Railroad Administration has written that it “finds no basis to conclude that the public disclosure of the information is detrimental to transportation safety.”

After the issuance of the temporary rules on May 7, 2014, the Department of Transportation asked states to sign confidentiality agreements not to disclose the information its state emergency response commissions obtain from the railroads.

“This data is intended for persons with a need-to-know,” the department wrote. “DOT expects the SERCs to treat this data as confidential[.] … Accordingly, railroads may require confidentiality agreements prior to providing this information.”

Oklahoma agreed to sign and said the decision was made “in further interest of public safety,” and Delaware agreed to sign because it said any disclosures would constitute “sensitive information” that could “impact transportation security and public safety.” Louisiana, New Jersey, and California have also said they do not intend to release any information about oil trains to the public.

Nonetheless, Wisconsin, Montana, Illinois, North Dakota, Idaho, and Washington have explicitly refused to sign the agreements, with many of the states saying that signing the agreements would conflict with their freedom of information laws. Ohio initially refused to provide the information, but later reversed course. Pennsylvania also initially signed the confidentiality agreement but now provides some of the information to the public online.

Despite the concerns by some states, the National Transportation Safety Board has extolled the benefits of informing the public.

“Having an informed public along rail routes could supplement a carrier's safety measures and help reduce the consequences of emergencies involving hazardous materials,” the NTSB wrote in September. “Classifying routing information about hazardous materials as 'security sensitive' would unreasonably restrict the public's access to information that is important to its safety.”

Oil trains are not the only methods of moving oil subject to recent political fights over information disclosure.

In Michigan last month, state representative Kurt Heise proposed a bill, HB 4540, which would restrict the public’s ability to request information that “could be useful to a person planning an attack on critical energy infrastructure,” even though Michigan’s Freedom of Information Act already includes a clause exempting information that would jeopardize national security from disclosure.

“State-level bureaucrats that have been given information by a pipeline company that has access to your property … would not be allowed to tell you what materials are getting pumped through the pipeline on your property, where that product is going, or what plans the company has in the event that the pipeline ruptures on your property,” Mike Berkowitz, legislative director of the Sierra Club Michigan Chapter, wrote in testimony to the Michigan House of Representatives. “HB 4540 would potentially also block citizens from finding out information about the electric power plants and oil refineries putting pollution into their water, their air and their communities.”

Michigan Radio noted the bill could restrict information on the 2010 Kalamazoo oil spill, which was the largest inland oil spill in U.S. history, and added pipeline operators could be nervous that the information would reveal that many pipelines currently in operation are similar in condition to the one that spilled.

Paul Nussbaum of the Philadelphia Inquirer has also documented his inability to obtain oil spill emergency preparedness plans from the city of Philadelphia and other agencies. He also noted that while the Emergency Planning and Community Right-to-Know Act requires gas stations and water treatment plants to report what hazardous chemicals are on their properties and to make that information available to the public, railroads are exempted from this legislation.

Matteson said emergency response planning was connected to public access to railroads’ high-volume crude oil transport information.

“I don’t think that you can have effective emergency response planning for environmental impacts, nor for safety, if there isn’t a general understanding of what you’re dealing with,” Matteson said, referring to a lack of disclosure about the exact chemical composition of what is being transported and to the onus being on local officials to seek out information on oil trains instead of on railroad companies to provide it. “I think it’s been a real failure of our government to provide information to the people.”

Related Reporters Committee resources:

· Federal Railroad Administration