This story is part of a joint investigation by InsideClimate News, The Weather Channel and The Investigative Fund. Read the main story Boom: North America’s Explosive Oil-by-Rail Problem.
The first public action U.S. rail regulators took after a fiery oil train explosion killed 47 people in Canada in July 2013 seemed clear, impactful and firm: Trains carrying hazardous materials could no longer be left unattended with their engines running unless the railroad first got approval from the Federal Railroad Administration.
Leaving a freight train unattended overnight with the engines running had been a major factor in the Lac-Megantic, Canada, disaster, and the August 2, 2013 news release announcing the U.S. action had a no-more-business-as-usual tone. The emergency order was “a mandatory directive to the railroad industry, and failure to comply will result in enforcement actions,” the press release said, adding no train shall be left unattended on the tracks with its engines running “unless specifically authorized.”
But it turns out that the emergency order had a loophole big enough to drive a locomotive through.
VIDEO: Boom: North America’s Explosive Oil-by-Rail Problem
Early on the morning of May 6, less than a year after the order was announced, James Racich, a trustee of the town of Plainfield, Ill., noticed a train parked near a crossing in the middle of town with its engines running early. Racich didn’t know about the emergency order, and he was accustomed to seeing trains left unattended on that stretch of track, enough so that it was a sore point with him. When he returned six hours later and saw the train still there—its engines still running with nobody aboard—he contacted the police. They confirmed that the train’s engines were unattended and contacted the railroad, Canadian National.
“They basically told us the train was secure, was locked up, things like that,” Plainfield Police Chief John Konopek said in an interview, adding “We have our hands tied. Because of federal regulation they can do that.”
The half-mile long train parked in Plainfield was a mix of hazmat tankers and non-hazmat box cars, Konopek said. Its crew members had left it unattended because they had reached their maximum allowable number of hours of continuous work. By the time the replacement crew arrived, the train had been parked in downtown Plainfield, unattended with its engines running, for more than seven hours, according to Racich.
Patrick Waldron, Canadian National’s director of state government relations, said in an interview that stopping the train on that section of track was part of the company’s “normal operating practices and is in full compliance of the laws and regulations, including that order.”
When pressed about the emergency order, he said, “I know the emergency order, but I’ve answered your question.”
It turns out that Waldron was right, because the emergency order is far weaker than advertised.
A tough-sounding FRA news release announcing the order had said that railroads could no longer leave idling trains unattended without approval from the FRA. Five days later, however, the FRA published the actual order in the Federal Register with less fanfare and tough talk. It contained fine print masking a huge loophole: The order would be satisfied when the “the railroad develops, adopts, complies with and makes available to the FRA upon request, a plan” for such stoppages. The “FRA does not intend to grant approval to any plan,” the order continued. So railroads could continue leaving trains unattended without FRA approval.
According to FRA spokesman Kevin Thompson, regulators aren’t required to review the plan. The railroad simply has to keep the plan in its files.
Canadian National reported it had a plan, Thompson explained, so the company had complied with the emergency order and can continue leaving trains unattended on the tracks with their engines running.
This article is part of a project supported by the Alicia Patterson Foundation, the George Polk Award program at Long Island University, the Fund for Investigative Journalism and the Society of Environmental Journalists’ Fund for Environmental Journalism. It was reported in partnership with The Investigative Fund at The Nation Institute.