There Will Be Blood – Oil Train Regulations Fail To Address Known Risks

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Railroad rules have been written in blood.” This line was included in the annual report of the Commissioner of Railroads for the state of Michigan — in 1901. The idea was that safety rules were only implemented when enough blood had been spilled.

One hundred and fifteen years later, in an opinion piece on rail safety for CNN, rail expert Fred Failey essentially said the same thing, opening his piece with the statement, “The rules by which trains operate on American railroads were written in blood.”

When it comes to the rules regarding oil trains in America, many regulations that would improve safety have yet to be written. One reason is that, despite the multiple oil train crashes resulting in massive explosions in the past several years, there have been no fatalities in America.

Although 47 people did die in the Lac-Megantic oil train crash just north of the Maine border in Canada, that apparently isn’t enough to change the tradition of the rail industry fighting any regulations that might improve public safety.

The Oil-By-Rail Industry Doesn’t Want to Be Regulated

An investigation by the Federal Railroad Administration(FRA) into the Mount Carbon oil train derailment concluded that the cause of the accident was a broken rail. At that time, Sarah Feinberg, the FRA’s acting administrator, noted that, “Broken rail is one of the leading causes of accidents.”

So what are the regulations regarding rails becoming worn and increasing the risk of derailments? There are none.

As the Associated Press (AP) reported in December, efforts to improve safety via rail wear regulations were stopped by the rail industry in 2013 in favor of “voluntary” safety measures.

Richard Inclima, head of the union representing rail inspectors, summed up the reality of what happened, “There was certainly a lot of pushback and a lot of political pressure put on FRA not to adopt regulations for rail wear. The industry doesn’t want to be regulated. That’s no secret.”

Following the Mount Carbon accident, the FRA is making plans to once again try for rail wear regulations.

FRA confirmed to DeSmog,“The Federal Railroad Administration has started its internal process to move forward with a rule to establish rail wear standards.”

Of course, the industry will once again flex its lobbying muscle to create “a lot of pushback and a lot of political pressure.” And these rulemaking processes take years. So, there is a well-established known risk and leading contributor to derailments — and still no regulations while the bomb trains roll on — because the industry doesn’t want them.

Modern Braking System Regulation Challenged in Transportation Bill

The new regulations released in May 2015 require oil trains to have modern electronically controlled pneumatic (ECP) braking systems by 2021. Last year Matt Lehner, communications director for the administration, clearly stated the administration’s support for ECP brakes.

ECP brakes are a proven technology that will reduce the number of train derailments and keep more tank cars on the track if a train does derail. Delaying the adoption of ECP brakes seriously jeopardizes the citizens and communities along our nation’s freight network.”

The brakes currently used on oil trains are air brakes, a technology developed in the 1870s. That 1901 report noted, “Considerable progress has been made in the equipment of freight cars with air brakes.”

The report also noted that new passenger cars had modern gas lighting. The lighting technology has been updated on current trains. The brakes have not.

However, as reported on DeSmog, in June the head of BNSF railroad stated he will not stand for this regulation. Last year, a Senate subcommittee tried to remove the ECP requirements from the regulations but the effort did not move forward.

Good news for all of those citizens and communities along our nation’s freight network, right?  Not so fast. The transportation bill passed at the end of 2015 provides the framework for the industry to remove the ECP braking requirement.

The bill includes a section that outlines how a study will be done on the effectiveness of ECP braking systems — a study of what the Federal Railroad Administration calls “a proven technology.”

And if the study finds that the costs of modern ECP brakes outweigh the benefits, then the Secretary of Transportation must “repeal the applicable ECP brake system requirements.”

Meanwhile, in the past year, the Association of American Railroads ran ads saying that data doesn’t support the use of ECP brakes.

Screen capture of Google ad from Association of American Railroads.

More delays. More challenges of a proven technology. And another workaround for the industry. It seems clear that the Federal Railroad Administration is not calling the shots when it comes to safety regulations.

Dangerous Tank Cars to be Phased Out Sooner…Or Not

The transportation bill also addresses the flawed DOT-111 tank cars and appears to move up the phase out schedule for using the DOT-111 to move volatile crude oil. This resulted in very misleading headlines like “New Highway Bill Includes Tough Rules for Oil Trains” noting how DOT-111’s will be off the rails by 2018.

Except there is a catch. The bill states, “The Secretary may extend the deadlines…if the Secretary determines that insufficient retrofitting shop capacity will prevent the phase-out of tank cars.”

The language of this is interesting. Guess who has been adamant that the retrofit deadlines are too short and that “shop capacity” will not allow the industry to meet them? The American Petroleum Institute.

So it appears that everything is set up for an extension with the American Petroleum Institute’s language and reasoning included in the new bill. So much for “tough” new rules.  

Volatile Bakken Oil

There are no federal regulations regarding the volatile components of Bakken oil — a recipe that makes it such a “bomb train” danger. Recently, the Attorney General of New York petitioned the federal regulators to address this issue.

As noted on DeSmog repeatedly, the science about the volatility of the Bakken oil is well known and the risk can be reduced via a process known as stabilization. Addressing this is even something the Secretary of Transportation wanted to include in the federal regulations.

But the White House took stabilization off the table.

The new transportation bill also mentions volatility. As with the braking issue, there will now be yet more study of something that is clearly established science.

Earlier this year, Al Jazeera reported the views of an oil scientist on the absurdity of continuing to study what has been known for 80 years.

The notion that this requires significant research and development is a bunch of BS,” said Ramanan Krishnamoorti, a professor of petroleum engineering at the University of Houston. “The science behind this has been revealed over 80 years ago, and developing a simple spreadsheet to calculate risk based on composition and vapor pressure is trivial. This can be done today.”

So will this new study required by the transportation bill reaffirm science that has been known for 80 years?

Or will it provide another out for the oil industry so they don’t have to address the volatility of the oil? Will the next transportation secretary once again be overruled when it comes to real safety regulations?

We should have answers to some of those questions in a couple of years. Meanwhile, the oil trains continue to roll through communities across North America.

Train Length

One of the suspected causes of the oil train derailments is the length of the trains. Doug Finnson, president of the Teamsters Rail Conference of Canada, explained this to CBC News after an oil train derailment in Canada last year saying, “These trains are likely too long, too heavy and going too fast for the track conditions in place.”

So what do the regulations say about train length? How long is too long?

There are no regulations for train length. And none are proposed.

Of course, longer trains are more profitable.

Unattended Trains – A Case Study in Watering Down Regulation

The train that caused the Lac-Megantic disaster was left unlocked and unattended on a section of tracks less than 20 feet from the main road headed into Lac-Megantic. There were no fences and the train was accessible to anyone.

Tracks where Lac-Megantic train was left unattended.

That disaster would have been prevented if the train was attended. But having staff on a train that isn’t moving costs extra money, so the railroads don’t do it.

After that accident, regulators took notice. And on the surface it appeared the Federal Railroad Administration’s Emergency Order 28, issued after Lac-Megantic, required that such trains not be left unattended. Unless the railroads provided a plan showing why it was ok to leave them unattended.

However, the FRA won’t be reviewing the plans and simply maintains the right to get “a copy of the plan upon request.” 

Not everyone was happy with this proposal, and in the rule Riverkeeper’s comments were noted:

“Riverkeeper notes that the equipment defined under paragraph (n)(6) can be left unattended if a justification is provided to FRA, characterizing this allowance as a “loophole.” Riverkeeper also criticizes FRA‘s decision to reserve the right to review any plan as an “abrogation of responsibility” and asserts that railroads should not be left to develop their own plans without FRA review.”

But those concerns were dismissed with the next line: “FRA disagrees with Riverkeeper’s characterization.”

So in reality, what has changed since the Lac-Megantic disaster?

A loaded Bakken oil train can still be left unattended on a hill above a community. But according to the new regulations, the door to the locomotive will have to be locked. As of March 2017. Nearly four years after 47 people were killed in Lac-Megantic.

Having a locked door on the Lac-Megantic train would not have prevented that disaster.

A Banner Year

In the annual report on Michigan’s railroads from 1901, there was good news for the rail industry. It showed “the amount of income for the year 1900 to be the greatest for the railroad business in this State.”  

However, there was some bad news as well. “There was the usual record of accidents and some of them were dreadful in the extreme.”

Record income, and “the usual” record of dreadful accidents. So what was recommended?

The idea of calling a meeting of the operating railroad men for the purpose of having a discussion of the question to the end that the code of train rules be made as perfect as possible, and the danger of accident be reduced to a minimum.”

Much like in 1901, the current regulation of the rail industry is driven by meetings of “railroad men” talking about regulations.

And as the Associated Press reported in 2015, “the industry doesn’t want to be regulated.” So they aren’t.

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Justin Mikulka is a research fellow at New Consensus. Prior to joining New Consensus in October 2021, Justin reported for DeSmog, where he began in 2014. Justin has a degree in Civil and Environmental Engineering from Cornell University.

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