After the Lac-Megantic tragedy, senior Transportation Department officials vowed to prevent a similar accident from happening in the United States. Cynthia Quarterman, the Transportation official who oversaw the regulatory response until her resignation in October, and Joseph Szabo, the FRA head through the end of this year, assembled working groups for three issues: train securement, crew size and hazardous materials.
Between September 2013 and April 2014, the three groups met, debated and thrashed out their recommendations.
A drafting session of the hazardous materials working group was held on January 27, in a large meeting room at the headquarters of the National Association of Home Builders, five blocks from the White House. About 60 people sat most of the day facing one another around a large rectangular configuration of conference tables.
FRA staffers occupied one line of tables, including Karl Alexy, head of the agency’s Hazardous Materials Division and chair of the meeting. The other seats were occupied by representatives from industries that ship hazardous materials by rail, including the Association of American Railroads, American Petroleum Institute, Chlorine Institute, American Chemistry Council, Fertilizer Institute and the Institute of Makers of Explosives.
Several railroads that run oil trains on their track also attended, including Canadian National Railway, Union Pacific, Watco and BNSF, the largest shipper of crude. Warren Buffett’s investment firm, Berkshire Hathaway, acquired BNSF for $44 billion in 2009, just as the crude-by-rail boom was taking off. Railroad worker unions were at the session, too, including the Brotherhood of Locomotive Engineers and Trainmen.
Throughout the day, the FRA’s Alexy floated safety recommendations drawn up by his staff. But none got past Michael J. Rush, the railroad association’s watchful attorney. Rush interjected, objected and parried with Alexy, dominating the discussion and delaying or diluting the recommendations.
The railroad association denied a request to speak with Rush, who was paid nearly $1.2 million in 2012 by the association and related organizations, according to the association’s tax filing that year, the most recent filing available.
At one point, Alexy proposed that railroads carrying large volumes of crude oil be required to have a comprehensive spill response plan, just as oil pipeline companies must have. Canada’s Transportation Safety Board had made that one of its key recommendations after the Lac-Megantic derailment, and the U.S. NTSB had taken the unusual step of endorsing Canada’s recommendations, simultaneously announcing them from Washington.
But Ross was having none of it.
Swiveling in his chair as he swung the microphone to his lips, he said, “With all due respect to the NTSB, they completely misunderstood this regulation and this topic.”
After some more back and forth, Alexy did what he would do throughout the day: He deferred to Rush.
“I agree, unless there’s any objection,” Alexy said.
There was none.
At one point, Alexy offered a recommendation that would have required better communication between shippers and railroads, to make sure railcars carrying heavier loads don’t travel over bridges that aren’t strong enough to support them. A typical oil train places roughly 15,000 tons of pressure on structures that could be as much as 150 years old.
“I’m not sure we have a problem with this in the industry,” Rush said.
Alexy cited a recent incident where it had been a big problem—a bridge had collapsed under the weight of railcars it wasn’t certified to support, resulting in a derailment. But after a few minutes of discussion, the group “parked” that recommendation, too.
An exchange between Alexy and Cynthia Hilton, executive vice president of the Institute of Makers of Explosives, reflected the tone of the meeting.
Hilton said she believed the goal that day was to produce recommendations that would give the industry guidance, not requirements that would force them to take specific actions.
“And now I’m reading that ‘the shipper must develop and adhere to a sampling and testing program,’” she said. “That doesn’t sound like a guidance document.”
“You’re right and I agree,” Alexy assured Hilton. “This is of course open for editing, ideas and suggestions. I circled the word ‘must’…. ‘Should’ is probably a little more appropriate.”
In April, the hazardous materials working group produced four narrow, technical recommendations. For instance, one recommended a definition for what constitutes an oil train. Another offered a definition for what constitutes an empty rail car.
None of the staff recommendations that Rush had objected to during the drafting session made the cut. Nor did any of the NTSB recommendations, such as the one that would have required railroads to have emergency plans.
The regulations are still under consideration by the Transporation Department without a formal deadline.
In July, California tried to fill part of the regulatory gap by imposing a 6.5-cent per barrel fee on oil shipped into the state by rail. The money will help communities develop emergency response plans for possible spills. BNSF, Union Pacific, and the Association of American Railroads have since filed suit against California, arguing that such matters are the province of the federal government.
Alexy declined through the railroad agency press office to be interviewed for this article. At an NTSB hearing in April, however, he responded to a questioner who asked him to characterize the results of the working group’s activities.
“A lot of things that we took up initially were overcome by events,” he explained.
Fred Millar, an advocate for tighter hazmat rail regulations and a longtime observer of the FRA, had another explanation: “Industry had veto power over everything.”