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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Railroads Fight California Over Oil-Spill Safety

SACRAMENTO (CN) - Major railroads sued California, challenging its new crude oil safety rules, claiming that state regulation of oil transportation is preempted by federal law.

Union Pacific Railroad and BNSF Railway, the two major railroads that run through California, and the Association of American Railroads sued the California Office of Spill Prevention and Response and Attorney General Kamala Harris on Tuesday in Federal Court.

The railroads challenge sections of Senate Bill 861, which include sections that require companies to come up with prevention and response plans for oil spills.

Senate Bill 861, passed in June, "prescribes in painstaking detail what the plans are to include," and "precludes a railroad's operation in California absent approval of its state-mandated plan by a state regulator," the lawsuit states.

Among other things, railroads must file contingency plans that provide for the best protection of natural resources in California through use of technology, manpower, training procedures and operational methods. They must be prepared to carry out cleanup operations in the event of a spill, as defined in an approved plan, according to the lawsuit.

The law requires railroads to obtain a "certificate of financial responsibility" from the state to show they have enough money to pay for damages from an oil spill.

Railroad employees may be subject to the threat of jail time and the railroads to civil and criminal fines of hundreds of thousands of dollars per day if they do not comply with the new state laws, according to the complaint.

The railroads don't like anything about it.

"Federal law preempts this entire regime," the railroads say. They claim that the federal government already has "elaborate safety standards governing matters such as the design and operation of rail cars; precisely how much oil (of which types) on board triggers additional, detailed mandatory safety precautions; the necessity for, and content of, a written plan to prevent and respond to accidental spills; and numerous other protocols to meet the critical challenge of transporting sensitive cargo over the nation's railroad tracks."

The law, which took effect July 1, requires scrutiny of railroad operations and safety procedures prohibited by federal law, such as obligating railroads to comply with a regulatory regime as a condition for operating in a certain state, the railroads say.

"As common carrier railroads, UP, BNSF and other members of the AAR are legally obligated to accept hazardous material like oil as cargo, and to deliver it wherever their tracks run, which includes California," the railroads say. "The corollary to that federal obligation is a longstanding congressional mandate that the safety of railroad operations remain substantially free of state-specific legal duties, except within prescribed federal limits. The new California law exceeds those limits by a wide margin."

Railroad representatives shared their concerns about the law with state officials, prompting the California Legislature to draft a second bill to declare that the law should be implemented in a way that would not conflict with federal law. However, the bill died in committee, the railroads say.

The railroads seek a declaration that the provisions of the law imposing plan and financial responsibility requirements be deemed invalid and unenforceable.

They are represented by Timothy O'Mara with Latham & Watkins.

The California Office of Spill Prevention and Response said it had no comment.

Train accidents involving hazardous substances, and succeeding explosions, fires and mandatory evacuations are not at all unusual in the United States.

On March 28, 2011, 12 railcars derailed in Ohio; some were carrying chlorine or ammonia. Nearby residents were evacuated.

On April 17, 2011, two people were killed in Iowa when a coal train derailed and burned.

On Oct. 17, 2011, 26 coal cars derailed and exploded, forcing 800 people to be evacuated.

On Jan. 6, 2012, three freight trains collided and burned in Indiana.

On June 24, 2012, three people were killed when two trains smashed into each other and burned in Oklahoma.

On Aug. 21, 2012, two women died in Maryland when a train derailed on a bridge and buried them in coal.

On Oct. 29, 2012, a tank car loaded with butadiene leaked and caught fire in Kentucky. It exploded two day later, seriously burning three people and forcing evacuations.

On Nov. 30, 2012, a railcar leaked vinyl chloride after derailing in New Jersey; dozens of people suffered breathing problems.

On Nov. 30, 2013, three people were killed when a mining train rolled out of control in New Mexico.

On Dec. 30, 2013, crude oil cars exploded and burned in North Dakota, after colliding with a grain train.

On Jan. 28, 2014, a train carrying phosphoric acid derailed in Florida, spilling phosphoric acid into a creek.

And on July 6, 2013, a runaway oil train exploded and burned in Lac-Megantic, Quebec, destroying half the town and killing 42 people, with 5 more presumed dead.

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