Surge prompts Kitzhaber to request ODOT study.

Prompted by a surge in crude-oil shipments through Oregon, a state committee began Tuesday to review changes in the rules governing railroad movements of hazardous materials.

The changes will eventually go to the Oregon Transportation Commission, and may also require Oregon lawmakers to amend a 39-year-old law that gives the Oregon Department of Transportation the authority to set rules. But state rules also must be consistent with federal laws and rules governing interstate rail shipments.

About 19,000 tank cars moved through Oregon in 2013, more than three times the previous year. The oil comes from the Bakken field in North Dakota and is bound for refineries in Washington and California; Oregon has no refineries of its own.

Pipeline capacity is insufficient to move the oil from North Dakota to Gulf Coast refineries, and the growing shipments of oil have shrunk rail capacity available for other commodities.

“We got caught flat-footed on the increase in oil transports,” says Hal Gard, ODOT Rail and Public Transit Division administrator.

“When we were confronted with the increase, we recognized our rules were woefully out of date, we were not enforcing our rules as written, and we recognized there were problems because of a series of issues with (federal) pre-emption. It’s time for a cleanup.”

To ensure the safety of oil trains through Oregon — and the state’s readiness to deal with problems — Gov. John Kitzhaber has asked for a review of state rules, which go back to 1997.

A crash of a 72-car oil train in July 2013 resulted in 47 deaths in Quebec. Similar crashes have occurred in the past year in Alabama, North Dakota and Virginia, although none of those resulted in fatalities.

“We are trying to strike a balance between protecting the level of information — keeping information out of the hands of bad guys — and making sure that first responders have the information they need and identifying the appropriate level of public disclosure,” Gard says.

“We would prefer to err on the side of public disclosure, realizing there are security and business concerns.”

Railroad reluctance

But railroad representatives on the state advisory committee have resisted disclosing any more information about shipments than already required by federal rules.

“We don’t want this information to fall into the wrong hands,” says Brock Nelson, public affairs director for Union Pacific in Portland.

Pat Brady, director of hazardous materials for BNSF Railway, even raised a question about the wisdom of the advisory committee meeting in public. (Because the committee advises the Oregon Transportation Commission, it must meet in public.)

Under Oregon's public records law, which dates back to 1973, virtually every document held by a public agency can be subject to disclosure. But the law has hundreds of exemptions added by lawmakers over the past 40 years, and some exemptions hinge on a legal test balancing the need for confidentiality against the law's presumption for disclosure.

He says federal rules bar railroads from disclosing information about what materials are delivered and picked up at specific rail mileposts — it might let competitors know what a company is doing — and about “security-sensitive materials” such as radioactive and explosive cargoes, and toxic inhalants.

He does not question the need of emergency services and other government agencies to obtain information about shipments. “We just want to make sure it gets to the right people and for the right purposes,” he says.

Over the course of a year, Brady says, “we do not see that much of a rise in commodities.”

Railroads compile annual reports about hazardous-materials shipments, on which police, fire and other agencies can plan drills and preparedness for emergencies.

“But one time a year is not enough,” says Les Hallman, Newberg fire chief who represents the Oregon Fire Chiefs Association.

“We have never had access to that data,” says Don Pettit, manager of cleanup and emergency response programs for the Oregon Department of Environmental Quality.

How often? Who should know?

The advisory committee has yet to recommend whether such reports should be submitted every six months, quarterly or monthly — and whether ODOT should be the central keeper of those records, which other agencies could access as needed.

Kenneth Yohe, a Multnomah County sheriff’s sergeant and a member of one of the state’s 13 designated hazardous-materials teams, says emergency-services agencies generally pass the word on quickly if there is an incident.

Other officials say that because large stretches of Oregon are not covered by fire agencies, the federal agencies responsible for almost half of Oregon — the Forest Service and Bureau of Land Management — should be added to those notified when there are incidents.

In addition to railroads and federal, state and local governments, the committee has a representative from the Friends of the Columbia Gorge.

The advisory committee has scheduled meetings on Sept. 22, Oct. 14 and Nov. 4. Recommended rule changes would go to the Oregon Transportation Commission, which would consider them at a formal public hearing.

Lawmakers’ 2015 session starts on Jan. 12.

“This topic is particularly sensitive,” ODOT’s Gard says.

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Clarifies why advisory committee must meet in public; explains public records law and the legal test for disclosure.

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