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 state emergency teams are armed with at least some details on
these shipments—when they’re arriving, how much oil they’re hauling—they can be
better prepared in case something happens. Such as a train
derails. Or a giant, fireball-inducing
explosion erupts.
But railroads aren’t so keen on making that information public.
As the Associated Press has
reported, companies such as BNSF (BRK.B), CSX (CSX), and Union Pacific (UNP) 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 reported, 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 that railroads provide states would be
shielded from Freedom of Information Act requests and rendered 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 are presumably still in compliance with FOIA laws. Seems
semantic, though perhaps acceptable.
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. City
officials admitted to having had no idea that crude oil was 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, along with the exact route they intend to take.
Railroads must also provide local officials with contact information for at
least one person 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 while facing fines up to $175,000 a day. It appears that neither is
happening yet. Kevin Thompson, a spokesman at the Federal Railroad
Administration, said that the DOT has granted railroads a “period of
discretion” in some cases while they negotiate with a handful of states. The
period would last a “few days,” he said. As of Monday, no fines had been
levied.
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 this. 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 Wisconsin and
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.
Why all the fuss to begin with?
Why are railroads fighting so hard to keep this information out of the public
domain? For one thing, the railroads are often bound by strict non-disclosure
agreements with the oil companies whose crude they’re hauling.
Culled from Bloomberg.com
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