New rules may make it harder to get information on Bakken oil trains

WASHINGTON – New federal rules that aim to improve oil train safety may actually make it harder for Minnesotans to learn about the highly explosive Bakken crude rolling through their communities.

Federal and state legislators worry that changes in mandatory railroad reporting requirements will make it more difficult for the public to know about oil train routes, numbers and load sizes.

The new rules eliminate automatic notifications by railroads to statewide authorities of oil train shipments and replace them with company points of contact to answer questions.

Railroads have traditionally been reluctant to reveal oil train information to anyone other than emergency response personnel for what they say are security reasons. BNSF, Minnesota's major Bakken crude hauler, warns of "real potential for the criminal misuse of this data" if it is generally accessible to the public.

But many public officials see the railroads' secrecy as a threat to public safety in its own right.

"This is a giant step backwards," Minnesota state Rep. Frank Hornstein, DFL-Minneapolis, said of the new disclosure rules. "They say anyone can call the railroads and get information. I'm very concerned about disclosure because the railroads had themselves exempted from the federal Community Right to Know Act."

U.S. senators, including Minnesota Democrat Al Franken, have sent a letter to U.S. Transportation Secretary Anthony Foxx expressing concern that ending automatic railroad reporting requirements could make it harder for members of the public to learn about their exposure to oil trains and other hazardous materials.

The new rules represent "a setback on disclosure requirements that could hamper our first responders and negatively impact the safety of our communities," the senators wrote to Foxx on Wednesday, in the wake of a fiery Bakken crude oil train derailment in North Dakota.

It was the 24th derailment in Canada and the United States since July 2013, when a Canadian oil train accident killed 47 people.

"We call upon you to issue an Emergency Order that improves the process for providing detailed information on crude-by-rail movements and volumes to first responders, shifts the onus for information sharing onto the railroads and not communities, and allows for the continued public availability of broader crude-by-rail data on movements and routes," the senators wrote.

In an interview, Franken said railroads should affirmatively report oil train schedules to communities ahead of time so they can be prepared, not just tell them what passed through town retrospectively.

"We're asking that the railroads take the responsibility for telling first responders and local officials," Franken said.

A transportation department spokeswoman said the agency is "reviewing comments from emergency responders and lawmakers to get additional clarity on their concerns, and we are coordinating with our interagency partners to address these concerns." The spokeswoman added that the current notification requirements remain in effect for now.

But without an extension of the current requirements, it appears that communities will have to inquire to find out about the passage of oil trains, which are often a mile long and carry more than 1 million gallons of highly flammable liquid.

Bakken crude has been judged by some experts to be more volatile than other kinds of crude oil. The rash of recent derailments caused punctures and leaks in older tank cars — and even some newer ones — that led to explosions and fires.

Last week, Foxx and Canadian Transport Minister Lisa Raitt announced plans to require new, more secure tank cars for Bakken crude transport and a timetable to reinforce currently used tank cars to make them more puncture- and leak-proof.

Officials in a news release said this change of policy also included the drop of the mandatory notification rules.

Critics say this puts a burden on communities to call for information and could lead to fragmented understanding of where and how oil trains operate throughout the states. Critics also charge that the new rule cheats rank-and-file citizens out of easy access to critical information. More than 326,000 Minnesotans live within the emergency evacuation zone of a single-car derailment on the state's oil train routes.

Hornstein and others expressed concern that the new rules further restrict release of information to "authorized" people using language that keeps data secret in the name of national security.

Minnesota has been making some information on oil train size, numbers and routes publicly available through its Department of Public Safety. But to do so, the agency has had to ignore repeated warnings from railroads, as well as Department of Transportation "guidance" that the information is "confidential."

BNSF goes to great lengths to keep its oil train reports from the public, sending cover letters that warn "numerous federal and state regulatory restrictions prohibit … publicizing data on train volumes and routing."

"We're happy to give information to emergency first responders" and were doing so before federal officials put mandatory reporting in place, BNSF spokesman Mike Trevino said in an interview Thursday. "We proactively reach out to first responders and offer training."

Trevino said he wouldn't comment on the new reporting rules or speculate on how the company would answer a request for oil train information from a rank-and-file member of the public under the new rules.

"Regular people could also be people who have ill intentions when possessing that information," he said.

Like Hornstein, Oil Change International, a group that advocates for clean energy sources by "exposing the true cost of oil," decried the new rules. Criminal misuse of oil train information is less of a public safety risk than the potential for derailments like those that have occurred recently, Oil Change staffer David Turnbull maintained.

"What's really scary," Turnbull said, "is having a bomb train coming through your back yard and not knowing about it. The Department of Transportation should be facilitating access to that information rather than curtailing it."

Jim Spencer • 202-383-6123