Safety Can't Be a 'Pretext' for Regulating Unsafe Oil Trains, Says Trump Admin

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The federal agency overseeing the safe transport of hazardous materialsย released a stunning explanationย of its May 11 decision striking downย a Washington state effort to regulate trains carrying volatile oil within its borders. A state cannot use โ€œsafety as a pretext for inhibiting market growth,โ€ wroteย Paul J. Roberti, the chief counsel for the Pipeline and Hazardous Materials Safety Administration (PHMSA).

The statement appeared in the Trump administration’s justification forย overrulingย Washingtonโ€™s oil trainย regulation, which was challenged by crude-producing North Dakota andย oil industry lobbying groups. The Washington rule seeks to limit oil vapor pressure unloaded fromย trains toย less than 9 pounds per square inch (psi) in an attempt to reduce the likelihood that train derailments lead to the now-familiarย fireballs and explosions accompanying trains transportingย volatileย oil.

Roberti wrote:ย โ€œProponents of the law insist Washington State has a legitimate public interest to protect its citizens from oil train fires and explosions, but in the context of the transportation of crude oil by rail, a State cannot use safety as a pretext for inhibiting market growth or instituting a de facto ban on crude oil by rail within itsย borders.โ€ย 

With this statement, PHMSAย is codifying what has been clear for some time at the regulatory agenciesย responsible for overseeing the transportation of hazardous materials by rail: that is, profitsย take priority overย safety.ย 

Rail Industry ‘Pre-emption’ and Safety Underย Trump

A year ago, the U.S. Department of Transportation (DOT), PHMSA‘s parent agency,ย invoked the same legal argument, known as โ€œpre-emption,โ€ to overrule stateย efforts to require at minimum two-person crewsย for operating freight trains. As part of the explanation for that decision, the DOT‘s Federal Railroad Administrationย announced that it was adopting a policy ofย deregulation.

โ€œDOTโ€™s approach to achieving safety improvements begins with a focus on removing unnecessary barriers and issuing voluntary guidance, rather than regulations that could stifle innovation,โ€ wrote theย agency.

A regulatory agency announcingย a broad deregulatory agendaย was shocking. However, this latest move openly declaresย that, while Washington state may have an interest in protecting its citizens from โ€œoil train fires and explosions,โ€ thatย concernย should not get in the way of the oil industry’s ability to ship more of its product by rail through the state, apparently even if that increases the risk ofย oil train fires and explosions to Washington residents. This logicย reaches a new level of prioritizing profits over people as regulatoryย practice.ย 

Historically, or at least, theoretically, government has based regulationsย onย cost-benefit analyses,ย weighing the costs of complying for the regulated entities against theย benefits, such as lives saved or accidents prevented, as a result of the new rules. Here, the DOT‘s new regulatory approach appears to weigh primarily the benefits for the rail and oil industriesย while downplaying the potential cost in humanย lives.ย 

However, these industriesย did argue about costs to get to this point. As DeSmog has repeatedly documented, loweringย the vapor pressure of oil below 9 psi is possible throughย a process called stabilization, whichย makesย oil less volatile and less likely to ignite. Conditioning the oil in this way before loading on trains would require the oil industry to invest in stabilization equipment, which the industry has argued is not economicallyย feasible.

In 2014, Myron Goforth, the president of Dew Point Controlย LLC, a manufacturer of stabilization equipment, put the situation in simple terms. โ€œIt’s very easy to stabilize the crude โ€” it just takes money,โ€ Goforth told Reuters. โ€œThe producer doesn’t want to pay for it if he can ship it withoutย doingย it.โ€

DOT‘s May 11 decisionย notes thatย โ€œcompliance with the [Washington] law can only be accomplished by (1) pretreating the crude oil prior to loading the tank car.โ€ย Exactly:ย Making the oil safe to ship on long, heavy trains through small towns and large cities requires stabilizing, or conditioning, before loading it intoย tank cars (just as the industry does before loadingย oil in pipelines or on ocean-going tankers, at leastย in Texas). DOT makes no argument about howย companies could comply with the Washington law, outside of trying to avoid passing through the state entirely or using a different transportation mode other thanย trains.

A particularly telling clue behind the DOT‘s conclusion that the Washington law should be pre-emptedย is found in the commenters whose opinionsย the agency is highlighting: โ€œIn light of the infrastructure, equipment, and other logistical issues, the commenters have concluded that pretreating is economically infeasible orย unrealistic.โ€

In this case, the โ€œcommentersโ€ the DOT is referencing are members of the oil industry and its lobbyists, including the refinery company Hess Corporation, Marathon Petroleum, the American Petroleum Instituteย (API), American Fuel and Petrochemical Manufacturers, and the North Dakota Petroleumย Council.

At an oil-by-rail conference in 2016, an API official described the industry’s attitude about the prospect of requiring oil stabilization for rail transport:ย โ€œWe in the oil and gas industry see this as a very dangerousย conversation.โ€

In December 2017, Trump’s Federal Railroad Administration repealed an Obama-eraย ruleย requiring modern braking systems on oil trains despiteย overwhelming evidence that theseย systems improve rail safety. Sarah Feinberg,ย former head of the Federal Railroad Administration, offered important context about rail industry opposition to thatย rule.ย 

โ€œThe science is there, the data is there,โ€ Feinberg said of the efforts to require updated rail braking systems on oil trains. โ€œTheir argument is, despite that data, [they] donโ€™t want to spend the money onย it.โ€

That seems to be the rule for overseeing rail safety under the Trump administration. If a rule costs industry money to improve safety and protect the public fromย oil train fires and explosions, the industry will push back against its regulators, who appear to be pushovers, especially but not exclusively underย Trump.

The alternative of prohibiting oil transportationย by rail, because it is apparently too dangerous and too costly to do safely,ย is never evenย considered.

Ignoring theย Science

The latestย decision on the Washington state caseย continues a trend under Trump toย overlook robustย science when regulating oil by rail. However, you might not know it from the comments of thisย decision’sย supporters.

PHMSA used a single, flawedย study from Sandia National Laboratories to support its conclusionย thatย limiting the vapor pressure of oilย moved by rail is unnecessaryย โ€” while the agency ignoredย all the other established research on vapor pressure, volatility, and ignitability of crudeย oil.ย 

The North Dakota Congressional delegation opened its statement praising the May 11 decisionย with lip service to science:ย โ€œWe thank the administration for doing the right thing by putting sound, scientific evidence above partisanย politics.โ€

In the same vein, Ron Ness, president of the North Dakota Petroleum Council, told the Associated Press, โ€œThere is nothing unusual about the volatility of Bakken crude oil,โ€ a claim theย North Dakotaย attorney general has also madeย to argue against the Washington vapor pressureย law.

And yet these statements don’t stand up to scrutiny. In my book Bomb Trains: How Industry Greed and Regulatory Failure Put the Public at Risk, I present the evidence that Bakken crude oil’s volatility is higher than other regions and that this factor makes a difference. This crude oilย is much more volatile than traditional crude oil from Louisiana or Texas, and that volatility, along with other factors, makes it more likely to ignite in oil trainย derailments.ย 

As I noted at the timeย of its publishing,ย theย Sandia Labsย study is deeply flawed and does not study the actual issue of oil igniting duringย trainย derailments.ย 

As for whether Bakken oil’s volatility is โ€œunusual,โ€ aย Wall Street Journal analysis found in 2014ย that โ€œCrude oil from North Dakota’s Bakken Shale formation contains several times the combustible gases as oil from elsewhere.โ€ These combustible gases are what give the Bakken oil much higher vapor pressure levels than most other crude oils from theย U.S.ย 

The combustible gases in the oil are natural gas liquids like butane and propane, which is why the oil is soย volatile.ย 

At the same time that the oil industry tries to say Bakken oil isnโ€™t more volatile than other oils, it argues that Bakken oil’sย value lies inย these extra natural gas liquids. Stabilizing the oil by removing these gases from the oil not only would cost the industry money but the resulting oil would be worth less to theย industry.ย 

The DOT notes as much in its recent decision: โ€œThese higher vapor pressure hazardous materials, such as butane, ethane, and other natural gases, are deemed essential and valuable components of Bakkenย crude.โ€

The oil industry has no argument to make on a scientific basis here, only an economic one.ย Reducing the vapor pressure of oil by removing gases like butane and ethane makes it less volatile and less likely to ignite. That is established by research. Butย the industryย has repeatedly argued that removing these flammable gasesย from the oil would make it less valuable, which is one of its justifications for not stabilizing theย oil.ย 

A Second Bakken Bomb Train Boom Could Be on theย Way

The only things that have kept the estimatedย 25 million North Americans living along railroad blast zonesย safer fromย dangerous oil trains is the success of activists who have blocked new oil-by-rail projects and oil industry economics. Because transporting oil by rail is more expensive thanย by pipeline or ocean-going tankers, the industry moves much less oil on trains when oil prices areย low.


Oil train protesters in Albany, New York,ย in May 2016.ย Credit: Justinย Mikulka

With current oil prices at record lows in the U.S. and Canada, it doesnโ€™t make economic sense to move oil by rail, which is good news for the millions of people living along theย rails.ย 

However, a current legal battle over the Dakota Access pipeline could make moving Bakken oil by rail a major mode of transportation, perhaps regardless of oilย price.ย 

A judge recentlyย set a hearing to review the permitting process for the controversial pipeline, currently moving 500,000 barrels of crude per day.ย Depending on the outcome, that hearingย couldย result in the judge vacating the pipelineโ€™s permits, shutting it down and diverting all of that Bakken oilย back onto the rails in a big way, at levels that would surpass the records of 2014. The Obama administration passed oil train safety regulations in 2015 in response to the fiery accidents and oil spills that coincided with the boom in oil trainย traffic.

The Trump administration has steadily worked to roll back the modest progress of those safety rules, with the last one, on vapor pressure for oil by rail, withdrawn from the rulemaking process the very same day the DOT pre-empted Washington’s vaporย pressureย rule.

Now,ย an essentially unregulated oil-by-rail industryย poses a real risk toย public safety and the environment. With the Trump administration shooting down Washinton’s ruleย and repealing previous safety regulations, theย risks of moving volatile oil by rail are essentially the same as in 2013.ย That was the same year a train haulingย Bakken oil exploded in downtown Lac-Mรฉgantic, Quebec, and killed 47ย people.ย 

Today, Bakken oil is just as volatile โ€” and dangerous. The trains pulling upwards of a hundred cars ofย oil have the same outdated braking systems. Regulators have no requirements overseeingย trainย track integrity or wear (the two latest oil train derailments and fires in Canada were likely because of track failures). There are no regulations on train length. And while rail companies have phased in a newer class of tank cars, those cars have ruptured in every major derailment involving oil and ethanolย trains.ย 

The accident in Lac-Mรฉgantic happened almost seven years ago. An early Wall Street Journal article after the accidentย quoted an oil industry executive who said, โ€œCrude oil doesnโ€™t explode likeย that.โ€ย 

Which is true in most cases. But Bakken crude does explode like that because it is full of gases like butane, is highly volatile, and has much higher vapor pressure than most other crudeย oils.

While that doesn’t have to be true,ย the Trump administration is taking steps toย make sure itย is.

Main image:ย Train burning in Lac-Mรฉgantic, Quebec.ย Credit:ย Transportation Safety Board of Canada,ย CCย BYNCNDย 2.0

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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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