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An Analysis of Dueling Oil Transportation Safety Bills

March 2015

2015 Legislative Session

An Analysis of Dueling Oil Transportation Safety Bills

by Terry Wechsler

This article expresses the views of the author and not Whatcom Watch. Terry Wechsler, a licensed Washington attorney, is a co-founder of Protect Whatcom, the President of Whatcom Watch, and a frequent contributor about fossil fuel transportation proposals in Whatcom County.

Table for this story: Oil Transportation Safety Bills

With three crude train derailments in three days from Feb. 14 through 16 in North America — in southwest Alberta, northern Ontario, and Fayette County, WV — attention of legislators in Olympia should laser in on how to best address safety and prevention of an incident in Washington.

Immediately after those events, on Feb. 17, a bill introduced by Gov. Jay Inslee to address oil transportation in the State of Washington passed out of the House Environment Committee of the 2015 Washington legislative session in its first step through the legislative process. It has a long road ahead and, according to a staffer in the office of chief sponsor Rep. Jessyn Farrell (D, 46th LD), no one in Olympia will bet on its fate given that an oil transportation safety bill died in the Senate Committee on Energy, the Environment and Telecommunications during the 2014 session. That committee is chaired by Sen. Doug Ericksen (R, 42nd LD).

The governor’s bill, HB 1449, is not perfect, to be sure. In spite of its description as “addressing oil transportation safety,” activists in the state refer to it variously as “The Spill Bill” (Dan Leahy of Olympia) and “The Disaster Liability Act” (Don Steinke of Vancouver). This is because the bill does nothing to prevent crude trains from traversing the state nor does it regulate how the crude is transported on the land. HB 1449 does, however, do much more than a competing bill introduced in the Senate by Doug Ericksen.

Two of the three derailments in mid-February occurred in remote areas of Canada, and one train there reportedly had no leaks in spite of 12 tanker cars leaving the tracks. Unfortunately, Fayette County was not so “lucky.” There, at least one home burned down when at least nine of the derailed CPC 1232 tanker cars caught fire, and two nearby towns were evacuated as a precaution. At least one car landed in the Kanawha River, and leaks from punctured cars on the ground were reaching one creek a day after the incident. The area lost power indefinitely when power lines melted, and water because of possible contamination.

Here He Goes Again

In our 2014 pre-election issue, Riley Sweeney wrote an article1 for us describing why the senate race in the 42nd legislative district was so important. He summarized Doug Ericksen’s past use of procedural tactics to prevent good bills from emerging from his committee and to introduce weaker versions of the better bills. Democrats may reluctantly vote for Ericksen’s weaker sister bills because they do more than nothing though far less than the better bills would have. Ericksen can then run for reelection touting he is responsible for protecting the environment, or consumers, or little children, or …

Dueling Crude Rail Bills

Ericksen has introduced many bills this legislative session, including one addressing oil transportation which has language identical to that contained in the governor’s bill except where it doesn’t. Thirty-six members of the House co-sponsored HB 1449, the governor’s bill, and its companion, SB 5087, has 20 co-sponsors. Ericksen’s weaker sister bill, HB 5057, has one sponsor – him – and no companion bill in the Senate.

The table on the right compares some of the two bills’ main provisions. Notably, the governor’s bill would:

• Expand the barrel tax from just crude on ships to include crude on trains and via pipeline.

• Raise the barrel tax from $0.04 to $0.10 per barrel (42 gallons).

• Require railroads to report every transfer through the state, including the number of tanker cars and destination.

• Require some entity in the shipment chain to assume liability for any damages and file a guarantee with the state that they have the financial means to pay for any damage done.

There are many other provisions in the governor’s bill, but these go a long way toward getting the state off the hook in the event of an incident. The only provision the refineries agree with is expanding the barrel tax to trains because crude being received by rail offsets crude that would otherwise have been received by ship, which means there is no net increase in expense to them. All other provisions — raising the tax rate on crude moved by pipeline, identifying the responsible party and demanding reporting and a statement of guarantee — are noticeably absent from Ericksen’s bill.

For folks along the Columbia River and in Grays Harbor, there is another dramatic difference. The governor’s bill allows responsible agencies to immediately write rules addressing pilotage and tug escorts if and when they deem it appropriate. Ericksen’s bill would create a task force that includes industry and agency representatives. The group may not enact rule changes; it can only make a recommendation to the legislature to consider passing bills authorizing rule changes.

Total proposals on the Columbia River would more than double vessel traffic there, but new vessels would be tankers, bulkers and barges carrying fossil fuels, and would be much larger than most vessels on the river now. For that reason, Fred Felleman, the northwest consultant of Friends of the Earth, wishes the governor’s bill required rule changes for vessels there and in Grays Harbor and Puget Sound. “Crude tankers are transiting the Columbia River now, for the first time, and the state has taken no steps to address the risk those vessels pose there,” he said in a phone interview.

McCleary Probably Means a Long Legislative Session

This is a budget year in the two-year legislative cycle. The governor can call the legislature back to conclude any business for an unlimited number of 30-day special, or “extraordinary,” sessions. The state is subject to a contempt order for failure to comply with the state Supreme Court’s 2012 mandate in McCleary v. State to adequately fund K-12 education, so this year’s session could last until at least July, according to Bob Aegerter, a member of the Legislative Committee for the Washington state Chapter of the Sierra Club.

In coming months, Whatcom Watch will report on other bills, but for now, because both the governor’s and Ericksen’s oil transportation bills will probably survive, but only one, at most, will pass, we are calling on readers to contact their legislators.

What Can You Do?

In the sidebar are listed the representatives for the 40th and 42nd legislative districts. Please call or email their offices and urge them to support the following bills:

• HB 1449, the governor’s oil transportation bill;

• SB 5087, the companion to the governor’s oil transportation (and not Ericksen’s SB 5057).

Also ask your legislators to support any bills endorsed by the Brotherhood of Locomotive Engineers and Trainmen (BLET) designed to increase safety in rail transportation including:

• HB 1809 requires four crew members on trains with 51 or more rail cars containing hazardous materials.

• HB 1808 gives the Washington Utilities and Transportation Commission jurisdiction to regulate charter shuttle companies and their drivers hired to transport fresh crews to work in remote areas.

• HB 1284/SB 5696 places Class I rail yardmasters under federal hours of service criteria to prevent overwork and fatigue.

Because these bills are designed to increase safety — and not to unreasonably interfere with interstate commerce — they may withstand appeal by the railroads who will likely argue they are federally pre-empted.

Contact Your Legislator

If you don’t know which district you are in, go to

40th Legislative District

Rep. Kristine Lytton (D)

Rep. Jeff Morris (D)

Sen. Kevin Ranker (D)

42nd Legislative District

Rep. Vincent Buys (R)

Sen. Doug Ericksen (R)

Rep. Luanne Van Werven (R)

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