In the wake of two train derailments in Aberdeen, the Port of Grays Harbor took some time Tuesday at its monthly meeting to explain why it can’t regulate the railroad.
In the portion of the commissioners’ meeting that has been devoted to updates on crude oil shipping proposals at the Port, legal counsel Art Blauvelt discussed some legal background.
“When you look at something like what power does a port have, or what power does a city have, to mandate, to require something of the railroads, there have been a series of cases that have been decided in this state, in other states and in the U.S. Supreme Court,” Blauvelt said.
In 2002, Burlington Northern sued the City of Seattle over citations it had been issued for blocking streets. The franchise agreement between the railroad and the city specified the city could regulate the speed of the trains and the amount of time they spent blocking the streets, Blauvelt continued, but since that agreement, Congress passed the Federal Rail Safety Act in 1970 and the Interstate Commerce Commission Termination Act in 1995.
“This pre-empted all local control,” he said. “The Surface Transportation Board has jurisdiction over rates, routes, operations, switching, side tracks … and that jurisdiction is exclusive.”
“So our Washington State Supreme Court and all other courts that have looked at this issue have concluded that since 1996 … all railroad operations have been vested in the federal government,” Blauvelt continued.
That means the Port can’t order the railroad to use particular kinds of cars, move at slower speeds or block streets for shorter periods of time than what is required by federal law. It’s not just cities who are restricted — he said he found several cases where personal injury claims were thrown out because the railroads were technically following federal law.
“I found cases where a traffic and railroad engineer may come in and say in support of a personal injury claim, ‘That train was going too fast.’ … Cases have been thrown out on that,” Blauvelt said.
Another man sued a railroad claiming asbestos on trains caused his mesothelioma.
“Since asbestos brake linings were specifically permitted under the federal regulations, there could be no claim of injury rising out of usage that is consistent with federal law,” Blauvelt said.
The only cases that seemed to have some success are those complaining about the noise from idling trains.
“Otherwise, as (Public Affairs Specialist Kayla Dunlap) has described up to this point, it is all in the federal government,” Blauvelt siad.
Dunlap said she had been in contact with Genesee &Wyoming, the parent company of Puget Sound &Pacific railroad, and the company had pledged to review “every aspect of their protocols and track inspections beyond the required once a week.”
She told commissioners the U.S. Department of Transportation issued an emergency order last week requiring railroads transporting more than 1 million gallons of Bakken crude, or 35 tank cars, to notify state emergency response commissions of the route and amount, as well as provide contact information for at least one person with the railroad in the event of an emergency.
The DOT has already issued a safety advisory encouraging companies to use newer tank cars than the DOT-111 tankers, which are the current standard. Concerns have mounted over the past several months as several explosive derailments have called into question the safety of the older designs. Sen. Maria Cantwell has called for a date certain to require a new model of tank car.
Hoquiam City Councilman Richard Pennant implored commissioners to do whatever they could to stop crude from coming to the Port.
“I agree a lot of this probably looked like a good idea originally … (but) it’s looking like a worse idea all the time,” Pennant said. “It’s dangerous, it’s irresponsible with what you know now, with what you’ve found out in the last year and a half. It’s OK to say, ‘Hey we made a mistake, maybe we shouldn’t be doing things.’ Turn around, it’s all right.”
Linda Orgel of Aberdeen said she was disappointed by the “apparent lack of accountability coming from our Port for your role in the crude oil.”
She said the track damage visible after the two recent derailments begs serious questions about the weekly inspections the railroad has been conducting.
“That kind of deterioration did not happen overnight. There was something that should have been picked up on inspection and repaired. If there are problems here there must be problems all along the track,” Orgel said. “What would have happened if those cars had held crude oil? If it hadn’t been for a group of concerned citizens and the Quinault Indian Nation, that very well may have been the case. … Since the rail cars will not be changed out for years, I believe you are ultimately liable when a crude oil accident causes loss of life and property.”
Commissioners did get one vote of confidence, from Fred Rapp of Elma.
“I know the Port takes no position on crude for or against but is simply following the rules certifying these businesses based on environmental impact reports and so forth. And we thank you,” he said.