BNSF Railway will be required to pay more than $71,000 in a settlement with state regulators over not reporting spilled hazardous materials within the time required under state law.
The settlement stems from more than a dozen hazardous materials spills across the state between Nov. 1, 2014, and Feb. 24, 2015, including a train that leaked 1,611 gallons of Bakken crude oil from a tank car before the leak was discovered at BP Cherry Point refinery near Ferndale in November 2014.
The state Utilities and Transportation Commission staff alleged in a March complaint that BNSF had failed to report 14 releases of various hazardous materials, including crude oil, to the state within the required time, and recommended the company be fined up to $700,000.
The company disputed some of those claims, stating calls had been made on time and notification had been given to the National Response Center, as required under federal law.
In cases such as the car at Cherry Point, the company stated that the train was out of its custody when the leak was discovered and therefore not their responsibility to report.
While commission staff and BNSF drew up a settlement, it was discovered the state Emergency Operations Center had failed to provide the UTC with reports the railroad had made for six of 14 incidents. That reduced the number of alleged violations from 700 to 239.
Debate over reporting requirements
As originally drafted, the settlement proposed a $71,700 penalty with $40,000 waived if BNSF complied with the rule for at least a year.
However, after the UTC heard from state employees and BNSF Railway staff in an October hearing, the commission announced Monday, Dec. 7, that it would require the railroad to pay the full penalty within 10 days.
In the order, the commissioners said the entire penalty “would be more effective than suspending and waiving a portion of that amount, both to provide BNSF with an additional incentive to comply with its reporting obligations and to penalize the company for its past failure to do so.”
Specifically, the order states the commissioners are concerned the settlement doesn’t resolve a dispute over which events BNSF must report, such as the case at Cherry Point.
The UTC learned of that spill on Dec. 3, 2015, 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. State law, however, requires that the state Emergency Operations Center’s 24-hour duty officer be notified of releases of hazardous materials within 30 minutes.
“BNSF continues to dispute its obligation to make any report of the events underlying 239 violations included in the settlement,” the order states. “BNSF has not explained why it reported the Cherry Point Event to the (Federal Railroad Administration) but not to the (Emergency Operations Center).”
Not only do staff and the company not agree on which events are reportable, the order states, it’s not likely they will reach an understanding because of the settlement.
As such, the commission said it would only approve the settlement if BNSF and staff also submit a document detailing how the company will comply with the rule in the future.
The company and commission staff that helped draft the settlement each have five days to accept the commission’s order or reject the conditions and move forward with a legal hearing.
BNSF said that leak was “discovered off BNSF property” and the car was not in transit, nor was it in the company’s custody at the time, so that case should not be considered a violation under state reporting requirements.
In another case, a train loaded with Bakken crude oil needed to have more than a dozen leaking tank cars removed at three separate stops as it traveled through Idaho and crossed Washington state in mid-January. The UTC was alerted after cars already had been removed.
In investigating that train, regulators with the Federal Railroad Administration discovered roughly 6,000 tank cars could have defective valves that caused leaks of hazardous materials in several incidents across the country. The FRA first ordered those valves be replaced by May 12, but extended that deadline to Dec. 31.