In May the U.S. Department of Transportation ordered railroad operators to start giving state emergency responders basic information about trains hauling crude oil through cities and towns, including when they’re coming, where they’re going, and how much oil they’re hauling. The order came a week after a CSX (CSX) train carrying crude from North Dakota derailed and exploded in downtown Lynchburg, Va., spilling 30,000 gallons of oil into the James River. City officials said they had no idea oil trains were passing through town and weren’t prepared to respond to a spill of that magnitude.
The federal requirement covers oil trains from the Bakken region of North Dakota, where most of the U.S. oil that travels by rail originates, and applies only to trains carrying 1 million gallons or more of crude. Many oil trains are 100 cars or longer and carry three times that. Trains haul about 42 million gallons of oil a day across the U.S. and Canada. If disaster teams have some details on these shipments, they can be better prepared when a train derails or explodes, something that’s been occurring with alarming frequency.
Railroads aren’t so keen on the public having that information. Companies including BNSF Railway, CSX, and Union Pacific (UNP) have asked states to sign nondisclosure agreements promising to keep the data secret. They say they’re concerned states won’t limit information to fire departments and hazmat teams but will open it up to anyone who asks.
The industry contends that letting everyone have access to the details of shipments threatens national security. “Does the public really want that information disclosed for bad guys to have?” says Michael Trevino, a spokesman for BNSF. Even citizens who live near a railroad track shouldn’t have access to the comings and goings of oil trains, he says. “What will they do with that information once they have it?” Spokeswomen for CSX and Union Pacific said in e-mails that they oppose broadly releasing the data for reasons of security and to keep proprietary information from competitors.
Fred Millar, a rail safety consultant who’s worked for cities and environmental groups, doesn’t find these arguments persuasive. Oil trains “are like elephants tiptoeing through tulip fields,” he says. “They’re already out in the open. Keeping them secret is a fantasy.” Rail companies want to keep the data locked up for a different reason, he argues: If politicians and the public knew how much oil is passing through populated areas, calls for regulation would be louder.
“Does the public really want that information disclosed for bad guys to have?”—Michael Trevino, BNSF spokesman
Several states, including Arkansas, Kansas, and Louisiana, have signed the nondisclosure agreements. Others including Washington, California, and Wisconsin have refused. The Transportation Department advises states to “treat this data as confidential, providing it only to those with a need-to-know.” Yet many states have sunshine laws that require public documents be made available on request. “Unfortunately, the DOT did not consult us to see how their guidance aligns with our state laws,” says Karina Shagren, a spokeswoman for Washington State’s emergency management division. “It puts us in quite a pickle.”
Railroads claim states must seek their permission before releasing the data to the public. In a 14-page letter to California, BNSF instructed the governor’s office to immediately notify the company of any requests made under open-access laws. Union Pacific has made similar demands. A DOT official, who asked for anonymity to talk about the contentious rule, says railroads are assuming power they don’t have. The department would prefer that states keep the information confidential, but the order doesn’t give railroads the authority to dictate terms to states, the official says. Although Washington State didn’t sign a nondisclosure agreement, Shagren says she’ll give rail companies 10 days to seek an injunction in a state court to stop the release of information. “We’re working with them in good faith on this,” she says. On June 18, BNSF’s Trevino said by e-mail that the company “will not pursue legal action to prevent disclosure.”
The deadline to comply with the federal order passed on June 7. Railroads that missed it were supposed to face fines of as much as $175,000 a day. But the Transportation Department has granted railroads a “period of discretion” in some cases while they negotiate with states over how they handle the information, says Kevin Thompson, a spokesman for the Federal Railroad Administration.
For all the tumult, the release of oil train data won’t do much to stop accidents, says Darl Jewell, deputy fire marshal and hazmat coordinator in Richmond, Va., where CSX sends regular shipments of Bakken crude through a busy downtown interchange. The disclosures will give him an idea of what he’d be up against in the event of a crash. He says that’s a distant second-best to keeping the trains away from densely populated areas. “You can be as prepared as you want, but we still wouldn’t be able to address a catastrophic disaster where multiple train cars derailed and exploded,” says Jewell. “We’d basically be picking a line in the city to determine what to save and what to let go.”