TRANSPORT

As DOT issues new oil-by-rail rules, DHS lags in its security plans

Earlier this month, U.S. railway representatives sat down with energy and defense officials to discuss an urgent safety issue: moving crude by rail.

The July 11 roundtable allowed industry to show off improvements in oil train safety following recent accidents, according to Tom Farmer, assistant vice president of security at the Association of American Railroads, which represents many of the biggest U.S. freight companies.

The meeting was organized by an agency not typically associated with oil transportation: the Department of Homeland Security.

The agency more commonly associated with rail oversight, the Department of Transportation, yesterday unveiled a sweeping oil-by-rail rule that seeks to overhaul decades-old tank car standards and curb speeds for "high-hazard" trains.

Yet as milelong strings of crude tank cars snake their way through major cities across the country, DHS has dusted off its role overseeing the nation's rail network through the Transportation Security Administration. And the rapid rise of the "unit" oil train has also exposed gaps in the agency's approach to securing surface transportation.

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Farmer, who previously worked for TSA, said the railroad industry has taken a "proactive" approach to securing oil trains by overhauling several operating procedures and by communicating with DHS about threats to rail infrastructure. He noted that there "has not been any indication of security-related threats to the transport of crude oil by rail."

Yet DHS has not followed many of the rail provisions laid out in the Implementing Recommendations of 9/11 Act of 2007, leading some security experts to question the agency's "risk-based approach" to rail safety that relies heavily on industry cooperation.

The 2007 act called on DHS to create guidelines for railroads to prepare vulnerability assessments that could be updated to account for changes such as increased shipments of hazardous materials. However, a Freedom of Information Act request from EnergyWire revealed that the agency never followed through with regulations despite an August 2008 deadline. That means TSA neither keeps railroads' security plans on file nor reviews them in any standardized fashion.

Denise Krepp, who drafted the surface transportation provisions of the 2007 law as chief counsel of the House of Representatives' Homeland Security Committee, said she is "troubled" by DHS's failure to address the requirements of the 9/11 Act.

After the 2004 Madrid train bombings and the deadly attacks on London's public transportation system a year later, Krepp said lawmakers wanted to prevent a similar incident from happening in the United States by beefing up TSA's oversight of rail systems.

Krepp had worked as an attorney on TSA's rail team before joining the Homeland Security Committee under then-Chairman Bennie Thompson (D-Miss.).

"I was there on day one when DHS was created -- we knew what the weaknesses were," Krepp said. "I was trying to make sure, working with my boss Bennie Thompson, that all of the gaps that I knew about and that Congress knew about were addressed."

A TSA official said the agency "continues to work on" rail safety but added that inspectors "have been finding that railroads are prepared and have the appropriate procedures in place to address known threats and vulnerabilities."

Laws aren't 'for fun'

While the TSA is typically associated with screening passengers at airports, the arm of the Department of Homeland Security is also responsible for safeguarding surface and marine transportation.

Yet the agency has faced criticism for its approach to rail security ever since the 9/11 Commission issued its final report on the terrorist attacks in the United States a decade ago.

In that 2004 document, the authors noted that "surface transportation systems such as railroads and mass transit remain hard to protect because they are so accessible and extensive" compared to air networks.

They also said "over 90 percent of the nation's $5.3 billion annual investment in TSA goes to aviation -- to fight the last war" despite the fact that opportunities to harm surface transportation "are as great, or greater" than threats to commercial flights.

One former congressional staffer familiar with the provisions of the 9/11 Act said DHS has been "shy about asserting a role" in surface transportation due to the scope of the challenge and the difficulty in regulating across multiple modes from trucks to rail. "It's Fort Knox on one mode, and everything else is just kind of open -- it doesn't make good sense long-term."

That was when Congress stepped in to help the agency up its game in 2007.

"Congress doesn't enact laws for fun -- they don't enact laws as guidance," said the former staffer, who requested anonymity because of sensitivities with his current position.

But the funding gap between surface transportation and aviation security has persisted. TSA's budget for fiscal 2012 set aside $5.25 billion for aviation security, while devoting $135 million to surface transportation security across all modes.

"We're never going to be able to stop paying most of our attention to aviation -- it's just too prominent and the consequences of a mistake are too costly," said Slade Gorton, former Republican senator from Washington state and a member of the 9/11 Commission, in an interview.

He cited the recent disaster in eastern Ukraine, in which a Boeing 777 was shot down with a surface-to-air missile over territory controlled by Russia-backed separatists.

"Once something like that happens, everyone who's involved in it dies," he said, which is part of what makes protecting commercial aircraft "a dramatically difficult task."

The Sept. 11, 2001, terrorist attacks have also left a lasting impression on American attitudes toward aviation security, he observed.

But Gorton added that its continued focus on aviation doesn't mean TSA can shrug off protecting railways, particularly in light of recent accidents.

"In a perfect world, the DHS might have done more [in response to] specific requirements," he said. "But it does seem to me that AAR has taken its responsibilities quite seriously."

'Bomb trains'

Railroads have moved hazardous materials for decades, from propane to radioactive waste.

But dangerous goods traditionally have filled up one or two cars in longer trains hauling mixed freight.

Shipping big quantities of flammable liquids such as crude and ethanol is a fairly new phenomenon for the industry, dating back to the mid-2000s. (Railroads also shipped large quantities of crude in the late 19th century, but the practice slowed with the advent of pipelines.)

In 2008, railroads shipped fewer than 10,000 carloads of crude throughout the United States. Last year crude shipments topped 400,000 carloads for the first time in history, and today milelong lines of tank cars are a common sight from North Dakota to New York.

Such 100-plus-car "unit trains" can haul millions of gallons of crude in a single trip, allowing railroads to compete with pipelines and offering coastal refiners a key conduit to price-advantaged shale oil. But their hazardous cargo has caught fire and exploded on more than one occasion, leading protest groups to dub them "bomb trains."

Last year in Lac-Mégantic, Quebec, a 72-car oil train derailed and exploded downtown, killing 47 people. That set off a scramble on both sides of the border to address safety and security concerns.

"If Lac-Mégantic could happen by accident -- and this was by accident -- what happens if somebody deliberately does this?" Krepp said. "Why didn't [regulators] ask that question?"

The Department of Transportation, which was also present at the July 11 oil-by-rail roundtable with AAR, said its employees keep an eye out for security vulnerabilities during routine inspections.

"If we come across any problems -- if we see any security guards asleep or see anything missing -- we bring it to the attention of the facility manager, and they would need to address the situation," said DOT spokesman Damon Hill.

But Hill added that to his knowledge, TSA has no jurisdiction in securing rail facilities, suggesting the interagency cooperation Krepp and lawmakers called for in 2007 hasn't developed.

DHS has conducted hundreds of site visits to passenger rail facilities in recent years, but its role in monitoring freight shipments has been less clear. The Government Accountability Office has said TSA has traditionally focused on toxic inhalation hazards -- such as chlorine gas -- when reviewing freight rail security.

Krepp said a key goal of the 9/11 Act was to get TSA and DOT working together more closely to address new potential vulnerabilities such as crude by rail.

"Rail safety and security match up -- you can't have one without the other," Krepp said. "It should have been a combo of DOT and DHS."

Security sensitive

Mandates from DHS and DOT often overlap.

For instance, both agencies can say certain hazardous materials are "security sensitive," ensuring data on the whereabouts of shipments and stockpiles is shared on a need-to-know basis.

In practice, DOT has said it defers to homeland security experts for determining "security sensitive" information (SSI) (EnergyWire, June 4).

Yet despite environmentalists' "bomb trains" label for oil trains, crude isn't covered under SSI regulations. TSA said it would consider adding oil from the Bakken Shale to SSI regulations "if asked."

Barring SSI protections, oil train routing and traffic information has been shared widely via public records requests despite objections from freight giants such as BNSF Railway (EnergyWire, June 9).

Farmer at AAR called such disclosures "a factor that we'd rather not have."

Recent accidental oil train derailments and fires in Casselton, N.D., and Lynchburg, Va., mean the crude-by-rail boom is not likely to drop out of the national conversation.

Still, the rail industry is better suited by staying out of the spotlight and keeping a "low profile" when it comes to security, he explained.

"Part of that is ensuring care is taken with detailed information on shipments of crude oil, so that, for these distant adversaries that we have to be concerned about, you don't create an opportunity where one may not have been thought of or practically considered before," he said.

Many railroads have reached confidentiality agreements with state and local emergency response agencies to pre-empt disclosure of crude-by-rail details. The secrecy pacts reflect the rail industry's efforts to treat crude oil as a "security sensitive" commodity in everything but name.

Under a February agreement with Transportation Secretary Anthony Foxx, railroads have even started using a special route selection tool -- the Rail Corridor Risk Management System -- when moving more than 20 cars of crude. DHS helped develop that system, which accounts for 27 risk factors when selecting routes and has traditionally been reserved for raw explosives and other highly dangerous, SSI-designated substances.

Farmer said the industry would continue to update its networkwide security plan, which assesses vulnerabilities, is shared with TSA and covers many of the criteria listed in the 9/11 Act.

"The statute calls for security plans -- and we have those, both industrywide and among the major railroads. The statute calls for training, and we've had an appropriate and significant sustained effort on security training," he said. "Congress' expectations in the 9/11 Act -- in my view -- have been met."

Twitter: @BlakeSobczak | Email: bsobczak@eenews.net

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