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State rail regulators: Fine BNSF for not reporting leaks immediately

Washington state regulators have recommended BNSF Railway be fined up to $700,000 for failing to properly report more than a dozen hazardous materials spills in recent months despite the fact state staff had reminded the company how to do so last fall.

On Thursday, March 19, the state Utilities and Transportation Commission staff announced it found BNSF had failed to report 14 releases of hazardous materials, including crude oil leaks, within a half hour of learning about the leaks, as required by state law.

In one case, crews at BP Cherry Point refinery found crude oil had leaked onto the sides and wheels of a tank car, which was found to be 1,611 gallons short. That was on Nov. 5, but the UTC didn’t find out about it until Dec. 3, when it got a copy of the report BNSF sent to the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration. Railroads have 30 days to file that type of report.

When contacted about the incident by a McClatchy reporter in January, BNSF said the train was “not in transit, not on our property and not in our custody” when the spill was detected, and the company had submitted the required reports to state and federal regulators.

In another case from Jan. 12 and 13, a train hauling 100 cars of Bakken crude oil from North Dakota to the Tesoro refinery in Anacortes had more than a dozen leaking cars discovered in multiple stops as it crossed the state.

Although the UTC sent an investigator to look at the leaking cars as part of a Federal Railroad Administration investigation, BNSF didn’t report the incident to the state’s 24-hour hotline at the Emergency Management Division until two weeks later. The hotline duty officer is in charge of alerting the various state agencies that might need to respond to a spill.

When asked by The Bellingham Herald in February why the January incident was reported more than a week later, BNSF spokeswoman Courtney Wallace replied that BNSF staff members thought they were following proper protocols, and had amended their Washington reporting policy following discussions with the UTC in January.

But the investigation released by the UTC on Thursday shows that on Oct. 22, 2014, the UTC had emailed a copy of the state’s reporting requirements to Patrick Brady, BNSF’s director of hazardous materials and special operations, in an effort to make sure BNSF knew how to report accidents.

As copied into the body of the Oct. 22 email to Brady, the state law regulating accident reports ( WAC 480-62-310) lists the hotline number, which types of incidents must be reported, and states that railroad companies must call within 30 minutes of learning of the event.

On Dec. 3, Brady emailed the UTC again asking, “Can you send me the regulatory reference to spill notification to the UTC?” Staff members again emailed Brady the state law on reporting requirements, according to emails included in the investigation.

From Nov. 1, 2014, to Feb. 24, UTC staff found BNSF committed 700 violations of the reporting requirement. Every day an incident goes unreported counts as a separate violation, per state law.

In addition to the leaking crude oil incidents, the UTC announcement lists a variety of leaks that occurred throughout the state: a tank car dripping gas/oil from a bottom valve in Spokane Valley on Dec. 8, 2014; cars leaking “primary sludge” found in incidents in Seattle, Vancouver and Everett in December; two 100-gallon spills of lube oil from locomotives in December and January, among others.

The commission could opt to fine the company $1,000 per violation of the reporting law, but no fine has been issued yet. The commission will set a final penalty after BNSF gets the chance to have a hearing.

“When a company fails to notify the (state Emergency Operations Center) that a hazardous material incident has occurred, critical response resources may not be deployed, causing potential harm to the public and the environment,” the UTC announcement states.

BNSF was still reviewing the report when contacted for comment on Thursday.

“In regards to reporting releases in Washington state, we believed we were complying in good faith with the requirements from our agency partners,” BNSF’s Wallace wrote in a statement. “Following guidance from the UTC in January 2015, BNSF reviewed its reporting notification process and amended its practices to address concerns identified by the UTC. We will continue to work closely with the UTC moving forward on this issue.”

BNSF is the largest railroad company operating in Washington.

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