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Before Mosier Derailment, Union Pacific Lobbied Oregon Against Tougher Oil Train Rules, And Won

John Sepulvado/OPB
Chris Hooper, right, of White Salmon watches the fire caused by a derailed oil train in Mosier, Oregon, near Hood River in the Columbia River Gorge on Friday, June 3, 2016.

A year before 16 of its oil tanker cars derailed and caused a fire, a spill and an evacuation order in the Columbia River Gorge, Union Pacific lobbied against stronger oversight of oil trains moving through the Northwest.

The railroad industry lost in Washington. But in Oregon, it won. Here's how ...

Washington and California recently passed laws giving state government new oversight of a railroad company’s response to oil train crashes. Those laws include requirements that railroads file emergency response plans, new taxes on oil-by-rail shipments to fund preparedness and a mandate that railroads must show whether they can cover the cost of a worst-case oil train spill.

Oregon has none of those — even though lawmakers had the opportunity to create similar rules a year ago.

Oregon’s Opportunity

When Rep. Barbara Smith Warner, D-Portland, introduced Oregon House Bill 3225, it contained a sweeping set of new rules for oil trains.

Smith Warner’s 2015 bill came amidst a flurry of public concern after railroads began hauling millions of gallons of oil across the Northwest with little notice to state regulators or emergency responders.

Oil was once a rare commodity on rail lines, but because of newly tapped Bakken crude, mile-long trains of exclusively crude oil now roll through the Columbia River Gorge at least 15 times per week. The trains are on their way to storage terminals in Oregon and refineries in Washington and California.

Crude-by-rail’s swift and sudden rise has included several fiery derailments, including a 2013 explosion in Canada that killed 47 people. Such incidents have prompted calls for tighter safety rules from local elected officials up to federal regulators.

Among other things, Smith Warner’s bill would have given Oregon regulators oversight of railroad emergency response and created a tax on railroads to fund the state’s own planning and response.

Representatives for Union Pacific, BNSF Railway, short-line railroads and the oil industry testified against the proposed regulations, touting their own safety records and warning of litigation.

“Union Pacific has problems with many of the elements in the current version,” Brock Nelson, public affairs director for Union Pacific, told Oregon lawmakers at an April 2015 hearing.

“This mandates we must have state approval to operate in the state,” he said of one section in the bill. “We are governed by federal law, and we are currently in litigation over this same requirement in California.”

The bill was eventually gutted, replaced with entirely new language and trimmed from nearly 12 pages to less than two. Financial responsibility and state requirements for railroads were gone, replaced by a mandate for the state fire marshal to coordinate oil train preparedness efforts.

For its part, Union Pacific voluntarily agreed to coordinate with state and local officials to train 40 of the state’s first responders and to provide several trailers of foam suppressant along oil train routes in the state. Two of those were used in the June 3 derailment in Mosier.

“We’ve trained many firefighters and first responders here in Oregon,” Union Pacific spokesman Justin Jacobs said following the Mosier derailment. “We’re all about partnering with local first responders should things like this occur.”

An estimated 42,000 gallons spilled in Mosier, though much of it burned off in the fire. Cleanup of the rest is underway. Less than a week after the crash, derailed tank cars had been drained and cleaned of crude oil and removed. The oil sheen on the Columbia River was contained by boom, and excavation of contaminated soil was set to begin.

“It’s an example of the risk that they’re taking by passing this level of explosive material, potentially really unsafe materials, through our Gorge area,” said Emily Reed, council president for the city of Mosier. “They are not safe. We would love to see them stop oil trains through our corridor. We do not want to see this repeated.”

Officials have not yet released an estimate for the costs of the Mosier derailment. Union Pacific has said it will pay for the cleanup.

Following the derailment, Smith Warner said she’s gotten a lot of feedback that her bill played a significant role in the recovery effort.

She realized her original bill had little to no chance of passing in 2015, she said, and chose to compromise for faster improvements rather than stick to the original language and hope it passed in future sessions.

She said the bill was successful in getting railroads to cooperate in state preparedness efforts.

“I just feel as though they are not the enemy here,” she said of the rail companies. “This is their job, and they want it to go safely and well just as much as we do.”

But she acknowledged there is more regulating to be done. She said she hopes the fact that both California and Washington have now passed rules for railroads might spur Oregon to do the same.

The overriding sentiment from the Mosier derailment was, after the initial worry, relief. Change the wind speed, or move the the incident up or down the track a few miles, and 16 derailed cars of crude oil could have triggered a messier spill or a far more devastating fire.

The incident prompted Oregon Gov. Kate Brown to call for “the strongest possible measures from federal policymakers and regulators to bolster rail safety.

“The safety of our communities depends on this work being completed as soon as possible,” Brown said after the derailment.

Meanwhile, her own state lags behind neighboring Washington and California in spill response planning and oversight of oil trains.

For an indication of Oregon’s level of spill response compared to Washington, consider Mosier: The Washington Department of Ecology sent 22 of the approximately 85 people in its spill response unit to the incident in Oregon. It also sent two boats and contracted a helicopter. Oregon’s Department of Environmental Quality sent seven people — essentially its entire spill planning department.

“California and Washington are a little bit further along in trying to regulate oil trains than Oregon is,” said Eric de Place of the Seattle-based Sightline Institute, an environmental think tank that has studied oil trains extensively.

“But it’s also fair to say that most of the regulatory authority is reserved for the federal government, and that’s a real problem for states and localities.”

Limited Authority

Since last week’s derailment, lawmakers, tribal officials and environmental groups have called for stronger regulations for railroads hauling crude.

“Union Pacific is a common carrier. They can’t refuse these trains,” environmental activist Robert Kennedy Jr. said in Mosier on Thursday. “The industry has lobbied so that these state governments have very little power to control what goes through this town."

Railroads contributed more than $9 million in the 2014 national campaign cycle — the industry's highest total ever, according to the Center for Responsive Politics.

Oregon’s leaders say federal railroad law has hindered their efforts to oversee oil trains.

Smith Warner called federal railroad law “bizarre and byzantine.” Brown’s office cited federal law as the reason for some of the state’s lack of oversight powers.

“I think it’s important to be clear that the state’s hands are tied when it comes to these plans,” said Chris Pair, a spokesman for Brown. “State agencies cannot supersede federal authority and force a railroad company to submit their plans to the state.”

But just across the Columbia River, officials in Washington are months away from implementing signed legislation that does just that — go beyond what federal laws require for hauling crude oil by rail.

Railroads keep plans for how they will respond to an oil spill, including who does what, what equipment they’ll use and where it is stored. But under federal law, they are only required to file those plans with authorities if they’re transporting a container carrying more than 42,000 gallons of oil. Standard industry tank cars carry closer to 33,000 gallons. That combination essentially results in an exemption for oil trains.

But the Washington State Department of Ecology is set to require that railroads share detailed plans for how they would respond to an oil train derailment — the same level of oversight it and the Oregon Department of Environmental Quality have over plans for oil shipped via pipeline or by boat. Companies shipping oil via those modes are required to update their contingency plans every year, with full reviews by state authorities every five years.

“We’ll review those plans to make sure they meet our requirements, and we’ll be able to test that plan through drills and exercises to make sure that they’re really, truly ready for a spill when it happens,” said David Byers, a response manager with the Washington State Department of Ecology.

Another aspect of the new rules requires refineries and storage terminals receiving crude oil to notify the agency 24 hours before receiving the shipment.

“We’re going to make that information available to first responders so that they can see when to be expecting oil to be passing through their communities,” Byers said. “They’ll know the types of oil passing through their communities so they can design their plans and be more prepared to respond to an event.”

Northwest regulators were caught off guard when railroads first started hauling hundred-car trains of North Dakota Bakken crudeoil in 2013 and again when theystartedhauling shipments of Canadian tar sands crude last year.

“That piece around the public right to know is one of the most exciting parts of the bill,” said Washington state Rep. Jessyn Farrell, D-Seattle, who introduced the changes. “I don’t think there’s anything like it in the rest of the country.”

Contentious Bills

The requirement for emergency response plans was contentious, Farrell said.

The railroad industry lobbied simultaneously against similar bills in the Oregon and Washington state legislatures. The same representatives for railroads and the petroleum industry appeared on panels together in both states, using similar talking points in their testimony.

They advised lawmakers in both states that the legislation under consideration resembled rules that prompted Union Pacific and BNSF to sue the state of California.

The railroads argued that federal law prohibited California’s calling for railroads to submit spill contingency plans and to prove they can cover the cost of an oil train spill. Last year, a federal judge dismissed the suit.

A “phalanx of lobbyists” tracked the Washington bill’s every movement, Farrell said. When the bill reached the floor, they offered amendment after amendment via industry-friendly lawmakers.

“When you’re trying to move a bill through the process, putting 20 amendments on a bill and making us go through and vote on each one of them can actually impact the bill,” she said.

She and other proponents made some compromises, but eventually the core of the new oil train regulations in the Washington bill passed both the Democrat-controlled House and the Republican Senate.

Meanwhile in Oregon, lawmakers removed key provisions after railroads raised objections. They also changed language the railroads disliked. For example, Oregon legislators removed the term “high hazard train route” from the bill, which Union Pacific’s Brock Nelson objected to, saying it “creates a feeling of apprehension in the mind of the public.”

California and Washington tax oil that enters their states to fund spill planning. With no refineries, Oregon does not have that option.

Smith Warner’s bill proposed an alternative by taxing railroads based on track miles. It would have generated over $1.8 million per year.

But that tax was abandoned, leaving Oregon without a dedicated funding source to prepare for oil train spills.

Instead, Oregon’s fire marshal was given $365,000 over the next two years. The office had estimated it needed $2.7 million to ready the state for oil trains.

“Would I like to have gotten further and like to have more of the railroads paying for it? Yes, I would,” Smith Warner said. She said she plans on revisiting the issue in the 2017 legislative session and pressing Oregon’s national leaders on it as well.

Also gone was a provision that gave the Oregon Department of Environmental Quality oversight of the railroad’s spill contingency plans. The agency has that same authority for facilities, pipelines and marine vessels handling oil, which it can use to ensure plans are adequate and conduct drills to test readiness.

“I’ve been told that this is one of the strictest regions to conduct an oil spill drill in,” said Scott Smith, a spill contingency planner with DEQ.

Smith said DEQ does work with both Union Pacific and BNSF Railway from time to time. The railroads have shared response plans as a courtesy.

“We don’t have the ability to do preplanning and the drills and exercises; we don’t go through their plans every five years; and we don’t have any authority over them,” he said.

When a train derailed and flames erupted in Mosier on June 3, the most recent spill contingency plan DEQ had on file for Union Pacific was from 2000 — 16 years old — and written in a decade before mile-long trains of crude oil started moving along Northwest waterways.

Copyright 2016 ERTHFX.