BNSF: State rail regulators wrong in saying company failed to report leaks

BNSF claims that Washington state rail regulators were mostly wrong when they said the company failed to properly report more than a dozen hazardous materials spills.

In an email newsletter Monday, March 30, the company said it wants to “set the record straight” regarding claims made by the Washington Utilities and Transportation Commission staff in a March 19 report.

The report outlines 14 releases of hazardous materials between Nov. 1, 2014, and Feb. 24 that the state says were not properly called in to a state hotline within the required half hour of learning about them. In some cases BNSF did call the hotline, but not within 30 minutes, according to the report. In other cases, it states BNSF never called the hotline and only submitted a copy of a federal report required within a month of any hazardous material spill.

But the company stated it had found inaccuracies with “more than 90 percent of the alleged violations.”

“We are disappointed we were not provided the opportunity to review the report and correct some of the misinformation before it was issued,” the BNSF newsletter reads.

UTC staff found BNSF committed 700 violations of the reporting requirement related to the spills, since every day an incident goes unreported counts as a separate violation, per state law. Staff members have recommended the railroad be fined up to $700,000 for the incidents.

The case that could carry the most weight, with potentially 111 violations, involved a tank car that leaked 1,611 gallons of crude oil. On Nov. 5, crews at BP Cherry Point refinery found crude oil had leaked onto the sides and wheels of the tank car, 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.

In its Monday statement, BNSF said the leak was “discovered off BNSF property” and the car was not in transit, nor was it in the company’s custody at the time.

Also, BNSF spokeswoman Courtney Wallace said the company did report at least six of the other incidents to the hotline, and it has the reports to prove it.

Those six incidents, which happened Dec. 7, 8, and 9, make up 465 of the alleged 700 violations. The UTC investigation states that as of Feb. 24, none of them had been called in to the state Emergency Operations Center.

When asked about the discrepancy, Karina Shagren, spokeswoman for the state Emergency Management Division, went through the hotline reports again and found that BNSF had in fact called to report the Dec. 7 and 8 incidents, just not within 30 minutes of when the spills were reported to have happened.

As for the four incidents on Dec. 9, which involved releases of “primary sludge” in Seattle, Vancouver and Everett, those were reported to the state the same day by an employee from the National Response Center, the federal government’s 24-hour hotline for reporting spills of hazardous materials and oil. A copy of those reports shows that BNSF reported the spills to the NRC.

“The crux of the issue for BNSF centers on conflicting Washington state regulations,” the BNSF statement reads. “Historically, BNSF has made notifications to the Washington Department of Ecology (DOE) when indicated by DOE guidelines.”

The newsletter also states that after having discussions with UTC staff, the railroad has expanded its reporting protocol to make sure events that might not trigger a call to Ecology are still reported as required.

The UTC investigation 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 spills to their agency.

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.

“We are committed to complying with all applicable regulatory guidelines and BNSF continues to review and update its reporting protocols in response to changing standards and interpretations of those standards,” BNSF’s newsletter reads.

The commission could opt to fine the company $1,000 per violation of the reporting law, but no fine has been issued yet. UTC spokeswoman Amanda Maxwell said the commissioners will need to interpret whether the railroad company broke state rules or not, and will set a final penalty after BNSF gets the chance to have a hearing.

“All these allegations and the evidence checking is going to happen in the hearing room,” Maxwell said. “At this point we really have to wait and let the company address the allegations in the hearing room.”