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Pennsylvania Agency Ordered to Disclose Information About Crude Rail Shipments

The Pennsylvania Emergency Management Agency (PEMA) has been ordered to release detailed information about crude oil rail shipments throughout the state from North Dakota's Bakken Shale after three news media organization's requested the disclosures over the summer.

In three lengthy orders issued by the Pennsylvania Office of Open Records (OOR) last Friday, PEMA was ordered to provide copies of reports from state rail operators that include, among other things, information about the nature and quantity of crude being shipped throughout the state. Two Pittsburgh newspapers and a wire service had requested the disclosures, which rail operators were required to hand over to state emergency response commissions after an emergency order was issued by the U.S. Department of Transportation (DOT) in May (see Shale DailyMay 7).

The federal order came in the wake of several rail disasters involving crude oil rail shipments across the country and in Canada, including an incident in 2013 in which a train carrying crude derailed in Quebec, killing 47 residents in a small town there (see Shale DailyJuly 9, 2013). Those incidents also prompted a series of regulatory actions at the DOT, some of which of are still being debated as crude oil shipments are increasing with a boom in onshore oil and gas production across the country (see Shale DailyMay 2).

PEMA first denied the records request under an agreement with rail operators to protect what they said was confidential and proprietary information. The news organizations appealed and the OOR conducted a review, finding in its orders that the state's leading rail operators, CSX Transportation Inc. and Norfolk Southern Railway Co., had failed to provide enough evidence to show that they would be commercially harmed by making the disclosures public. Copies of the reports must now be released within a month.

The companies had argued that they were protected from public disclosures by the Public Utility Confidential Security Information Disclosure Protection Act and the Federal Interstate Transportation Act. OOR found during its review that the reports in question mainly contained "general statistical information" that included the number of crude cars operating in Pennsylvania counties, the frequency at which they operate and a general outline of the rail systems they use, in addition to the companies safety plans.

The OOR said such information was neither commercial nor financial in nature.

"The third parties have submitted only limited evidence, in the form of conclusory, self-serving affidavits/statements, discussing the degree of harm that could befall the third parties if the requested reports are disclosed to the public," the OOR orders said of CSX and Norfolk, which became involved in the appeals in September after learning of the news organizations' requests.

Late last year, the Association of American Railroads said the amount of oil hauled by rail in the U.S. rose more than 20-fold from 2009 to 2012, when 6.5 billion gallons were shipped (see Shale DailyNov. 27, 2013). More recently, the shipments have added to growing rail traffic as the national economy continues to rebound, according to the AAR's most recent data, which was released last week.

Although Pennsylvania has not witnessed the explosive crude rail disasters seen recently in places such as Quebec, Alabama and North Dakota, a tanker of crude oil and boxcar of sand nearly fell off a bridge in Philadelphia in January after a freight train derailed there. That incident, coupled with the series of national disasters and the state's own natural gas boom, combined to generate more interest in how Bakken crude is making its way through Pennsylvania.

The OOR said it could find no compelling reason to withhold crude rail disclosures. On Monday, the DOT shared a similar view when it made notice in the Federal Register that its May order would remain in effect, after a number of railroad companies had complained that the release of their proprietary and security information was harmful to their businesses. The DOT said it could find no reason to withdraw the order and added that the industry has experienced no harm from disclosing information related to crude shipments. 

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