The US Federal Railroad Administration (FRA) has doubled down on a demand that railroads notify state officials when large shipments of crude oil move through their towns, even as two of the largest rail companies fight in court to keep some of the information hidden from the public.
The demand is a reversal from a May FRA declaration that railroad companies would no longer have to provide certain information about crude oil shipments starting in 2016. Because of an emergency order issued last year, railroad companies must currently inform state emergency responders where and how often trains loaded with crude oil from North Dakota's Bakken shale formation are moving through their states. The emergency order mandating this information sharing would have ended under the FRA's new regulations.
The emergency order was originally inspired by heightened derailments of crude-loaded trains, which some have dubbed "bomb trains" because they often explode after a derailment. There have been six major incidents this year, including one last week in Culbertson, Montana, resulting in a 35,000-gallon spill. All except the most recent derailment resulted in fires or explosions.
'[M]aking crude oil route information public ... elevates security risks.'
Instead of supplying pertinent information about crude shipments to emergency responders, under the new FRA regulations announced in May, railroads would only have had to provide train reports to state fusion centers, the information sharing hubs maintained by the US Department of Homeland Security.
But Matt Lehner, a spokesman for the FRA, said the administration began fielding complaints from state officials after the emergency order's expiration was announced. As a result, the FRA has just done an about-face, promising that the emergency order from last year will remain in place and eventually become a permanent fixture.
"We heard from emergency responders that if the change went through, this whole process where the information became harder to get a hold of, it would almost become a national security concern," Lehner told VICE News. "Our announcement was just to let railroads know that our expectations are here to stay."
Watch the VICE News documentary "Bomb Trains: The Crude Gamble of Oil by Rail" here:
In keeping with the emergency order's mandate, railroad companies will still be required to report to state officials the weekly frequency of shipments of a million or more gallons of Bakken crude, as well as the routes and counties the trains will pass through. Under the new FRA regulations, railroads will also be required to report on the frequency and pathways of shipments of all "high-hazard flammable trains," which are loaded with a certain amount of flammable liquid.
But questions remain over how stringently the FRA actually enforces disclosure requirements. Even with the emergency order in place, a recent McClatchy investigation found that state officials in Illinois, Kentucky, Ohio, New York, and Pennsylvania had received no updated train reports from the rail company CSX since June 2014. If any rail company is found in violation of the FRA's emergency order, it faces a maximum penalty of $175,000 for each day it was out of compliance.
Eric de Place, policy director at the Sightline Institute, a think tank focused on sustainability in the Northwest, told VICE News the FRA has a poor record of enforcing transparency.
"They're relying on the good will of the railroads to report that information," he said. "My sense is that reporting has not been consistent or reliable, and I really have no reason to think it's being reported at all."
Another issue that remains, in spite of the FRA announcement, is whether train reports should be subject to freedom of information laws and available to the public. Two major railroad companies, Norfolk Southern and CSX — whose tanker trains have derailed and exploded this year — are suing Maryland's Department of Environmental to block it from disclosing shipment information to the Associated Press and McClatchy.
But often, de Place said, state officials themselves were reluctant to relinquish train reports to the public.
"They only release certain kinds of information," he told VICE News. "There's very little way for people like you or me to know important things" like the routes of crude-loaded trains.
Ed Greenberg, a spokesperson for the Association of American Railroads (AAR), an industry trade group, claimed that freight railroads "have and continue" to comply to the FRA's emergency order, but opposed releasing train reports to the public.
"It is the freight rail industry's position this is security-sensitive information that should remain with emergency first responders and we support providing pertinent data to emergency officials," Greenberg, said. He added that railroad companies were concerned that "making crude oil route information public ... elevates security risks."
From 2010 to 2014, the amount of crude oil shipped over rail increased 1300 percent, according to data compiled by AAR. Much of those shipments originated in the Bakken shale play, where oil production has surged from 55,000 barrels a day five years ago to over a million a day last year. And with production in the Bakken growing this year despite a slump in oil prices, the volume of rail shipments from North Dakota to refineries in the Northeast and along the Gulf Coast will likely grow.
Follow Aaron Cantú on Twitter: @aaronmiguel_