The rail industry asked the Department of Transportation three years ago to write new regulations for railroad tank cars that were carrying the country’s nascent oil boom.
In the two years that followed, state and local officials and the National Transportation Safety Board also urged the department to take action.
But the DOT did not begin the rulemaking process until last September, two months after 47 people were killed in a violent inferno when a trainload of North Dakota crude oil left the tracks in Quebec and exploded.
The department’s Pipeline and Hazardous Materials Safety Administration is working on the new regulations, and its sister agency, the Federal Railroad Administration, last week announced a series of voluntary measures to improve the safety of crude oil shipments. However, it might be another year before the tank car rules take effect.
It wouldn’t be the first time that rail safety regulations were delayed until tragedy struck. Four decades ago, the DOT required tougher standards for certain types of tank cars carrying flammable gases such as propane. Regulators gave the industry a three-year deadline, but did little to enforce it.
On Feb. 24, 1978, two months after that deadline passed, 16 people were killed in Waverly, Tenn., when a derailed tank car of propane blew up. The accident claimed the lives of the small town’s police chief, fire chief and half its fire department. Many others were badly burned. Only then were the improvements made.
“Washington’s very reactive,” said Mary Schiavo, a DOT inspector general in the Clinton administration. “Most reactive of all is DOT.”
Cynthia Quarterman, the head of the pipeline safety agency, which is writing the new rules on tank cars, probably will face tough questions from lawmakers in a hearing rail on rail safety oversight Wednesday in the House of Representatives. A key question likely will be why the agency took so long to act.
Jeannie Shiffer, a spokeswoman for the pipeline safety administration, said the DOT was “working aggressively across multiple fronts” on safety issues related to transporting crude oil.
“These are very technical and complex issues that require extensive review,” she said. “As the rule-making progresses, if we observe an imminent hazard, we will continue taking action and notifying the public.”
But officials across the country, from mayors to members of Congress, wonder why the agency failed to act with more urgency to protect their communities.
“It’s kind of inexplicable to me why it would take so long,” said Karen Darch, the village president of Barrington, Ill., a Chicago suburb that’s in the path of an increasing volume of crude oil shipments from western Canada to the Gulf Coast.
Darch asked the DOT for new regulations in April 2012.
In a statement, Meghan Keck, a spokeswoman for Transportation Secretary Anthony Foxx, said safety was the department’s top priority “and will continue to be our guiding principle as we work to strengthen safety measures regarding the transportation of crude oil and all forms of transportation.”
The delay could threaten the safety of the communities through which the trains pass, as well as economic growth fueled by the energy boom. States, which have little power to regulate rail transportation, are counting on the federal government.
Railroads aren’t waiting. BNSF Railway is buying 5,000 new tank cars, which is unusual because railroads generally don’t own them. Canada’s two largest railroads will attempt to discourage shippers from using less-safe tank cars by imposing a 5 percent surcharge. At least two refiners are planning to ship crude only in the better cars.
Rail and petroleum industry officials say they want regulatory certainty but won’t openly criticize Quarterman’s agency. However, they’ve been waiting longer than anyone else for an answer.
After it petitioned the agency in March 2011, the rail industry voluntarily adopted tougher safety standards for tank cars later that year. While tank car manufacturers struggled to keep up with the demand for new cars as oil production increased in North Dakota’s Bakken shale region, tens of thousands of older, less-protected tank cars filled the void.
The NTSB had been warning for more than two decades that the general-purpose DOT-111A tank car was vulnerable to punctures and ruptures in derailments involving flammable and toxic materials.
Those warnings intensified after railroads began hauling large quantities of ethanol in the DOT-111A cars. In several incidents from 2006 to 2012, large fires accompanied derailments of ethanol cars. Most caused no injuries or fatalities. However, one did, near Cherry Valley, Ill., in June 2009.
In a March 2012 letter to Quarterman, NTSB Chairwoman Deborah Hersman cited the “inadequacy” of the tank cars. The cars’ design, Hersman wrote, made them “subject to damage and catastrophic loss of hazardous materials” during a derailment.
In her May 2012 reply, Quarterman wrote that the issue was more complex than improving tank cars. Retrofitting or replacing the DOT-111A cars “will no doubt be a very costly endeavor,” she said.
Meanwhile, rail shipments of crude oil from North Dakota continued to grow as production outpaced available pipeline capacity.
“I don’t think in their wildest dreams they thought about a catastrophe,” Darch said.
Then it struck. On July 6, 2013, an unattended 72-car train of Bakken crude oil rolled down a hill and derailed in the lakeside town of Lac-Megantic, Quebec.
On Sept. 6, Quarterman’s agency announced that it would begin the rule-making process. The agency has received tens of thousands of comments from industry and environmental groups, local governments and citizen activists.
On Nov. 8, another Bakken crude oil train derailed near Aliceville, Ala., with a fire as large and intense as the one in Quebec. No one was injured or killed, but the accident spilled 748,000 gallons of crude oil into a wetland.
On Dec. 30, a train derailed near Casselton, N.D. The accident spilled 475,000 gallons of crude oil, some of which burned, sending a column of smoke and fire hundreds of feet into the air. No one was killed, but two-thirds of the nearby town’s residents evacuated.
Federal regulators concluded last month that Bakken crude was more flammable than conventional kinds.
“I think the volume caught DOT off guard,” said Schiavo, the former inspector general. “I don’t think they were on top of what that really meant.”
Keck, the DOT spokeswoman, defended Quarterman’s record leading the pipeline safety administration and noted that it had levied record fines against pipeline companies. That included a record $3.7 million penalty against Enbridge for a 2010 pipeline accident near Marshall, Mich., that spilled 843,000 gallons of crude.
“Under the leadership of Administrator Quarterman,” Keck said, “PHMSA has compiled the most aggressive record of enforcement in the agency’s history.”
Quarterman kept her distance from the Enbridge case, because the company was one of her clients at the law firm where she worked for a decade. The ethics pledge she signed required her to refrain from involvement in matters related to her former employer for two years.
Keck said Quarterman had followed the pledge.
“The Department of Transportation takes its ethics requirements very seriously and has never faced a violation of the ethics pledge that political appointees sign when they join DOT,” Keck said. “Administrator Quarterman has without a doubt abided by both the spirit and the language of the ethics pledge that governs all DOT appointees, which is also overseen independently by our ethics office.”
Before the Senate confirmed her in November 2009 to lead the 400-employee agency, Quarterman was an attorney at Steptoe & Johnson, a Washington law firm known for representing energy and transportation companies in regulatory cases.
BNSF, now the nation’s largest hauler of crude oil in trains, was also her client.
Before joining Steptoe, Quarterman spent four years as the director of the Minerals Management Service in the Clinton administration.
Such arrangements are not unusual in Washington. Industry representatives often have the kind of experience and expertise that presidents seek in their appointees.
Bizunesh Scott, the former chief counsel at Quarterman’s agency – she also worked as a special assistant to President Barack Obama – is now a partner at Quarterman’s former law firm. Scott’s specialty is pipeline and hazardous materials transportation, and some of Quarterman’s former clients are now hers.
“It’s something that’s endemic to Washington,” said Bill Allison, editorial director at the Sunlight Foundation, a nonpartisan government-watchdog group. “It’s hard to find qualified people who know the issues.”
However, such relationships can cast doubt on regulators’ independence, said former Rep. Jim Oberstar, a Minnesota Democrat who chaired the House Transportation and Infrastructure Committee from 2007 to 2011.
He said Quarterman would be better advised to limit her involvement, even if the law allowed it.
“If the administrator of the agency with responsibility for rule-making has a past that includes a law firm that represented railroads,” Oberstar said, “she needs to step back.”