Alarmed by a string of explosive and disastrous oil spills, two states recently passed laws aimed at forcing rail and pipeline companies to abide by more rigorous emergency response measures instead of relying on the federal government.
The moves by New Hampshire and Minnesota reflect a desire for more control over in-state hazards, as well as mounting frustration over gaps in federal law involving oil pipelines and oil trains, superficial federal reviews and the secrecy surrounding spill response plans submitted to U.S. regulators.
"At this point, lots of states are looking at oil-by-rail and thinking about how they would respond—whether they have the resources, whether their first responders have the resources, and whether their laws are sufficient to protect their communities," said Rebecca Craven, program director at the Pipeline Safety Trust, a safety advocacy group based in Washington State.
It's the same with pipelines. "States are becoming more aware of new pipelines being proposed in their states, or expansion of existing pipelines, or changes in [a pipeline's] products," Craven said. "As a result of public concerns being raised, they're starting to respond by undertaking state-level spill response plans. I think it could be a trend."
Under New Hampshire's law, which the governor is expected to sign, the state gains the power to establish its own, more stringent requirements for inland pipeline spill response plans and equipment. Minnesota's law creates tougher emergency preparedness standards for pipelines and oil-carrying railroads. It also charges rail and pipeline companies a fee to help equip and train local fire departments to handle oil accidents.
"I think it's pretty much indisputable at this point that what exists at the federal level is not adequate," said Sheridan Brown, legislative coordinator for the New Hampshire Audubon. "We're happy that there's going to be some state level oversight."
The concern over the safety of oil transport has been building with each major oil pipeline spill and train derailment.
The most catastrophic incident was the July 6, 2013 accident in Lac-Mégantic, Quebec, where a train derailed, causing 63 railcars full of North Dakota light crude oil to explode and killing 47 people. Since then, a series of other oil train derailments have resulted in fires or explosions, including in Aliceville, Ala.; Casselton, N.D.; Plaster Rock, New Brunswick; and Lynchburg, Va.
Major pipeline spills have been in the public spotlight, too. The most notable of them is the July 2010 pipeline rupture in Marshall, Mich., where more than one million gallons of tar sands oil spilled, fouling the Kalamazoo River—a disaster that has yet to be fully cleaned up. In April 2013, a pipeline split open and dumped tar sands oil into a Mayflower, Ark., neighborhood.
Under pressure to provide better oversight, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration (FRA) have enacted and proposed new rules for pipelines and trains and imposed voluntary restrictions for oil-laden trains.
But both agencies have a history of being too thinly staffed to carry out the oversight already required of them. And with industry lobbyists working to derail new regulations, critics worry that the necessary protections will never be enacted.
"Essentially, there's no meaningful regulation or requirements or standards for oil spill response for railroads," said Paul Blackburn, an attorney and consultant who helped push for Minnesota's new law. "Instead, decades old federal regulations continue...[that] for all practical purposes exempt railroads from federal oil spill response standards."
Urgency Felt in Wash., N.H.
Under the federal 1990 Oil Pollution Act, states are allowed to enact their own rules for spill preparedness as long as they are equal to or more rigorous than the federal regulations. Several, including California, Washington, and Oregon, did so years ago.
Now, railroads carrying crude oil through Minnesota have to submit spill prevention and response plans to the state pollution control agency, carry out practice drills and comply with other requirements in an emergency. Companies that move oil in the state via rail or pipeline also have to pay a fee to fund training and buy equipment for emergency crews to respond to an oil-train explosion or pipeline rupture.
"Minnesota recognized that scores of its cities and towns are threatened by crude oil shipments by rail and pipeline, and that local first responders are almost always the first on the scene," said Blackburn. "To respond to a major spill—such as from an oil unit train [of around 100 tank cars]—is well beyond the abilities of most rural fire departments."
Blackburn said he expects other states that have growing oil-by-rail traffic to consider similar fees and requirements.
In New Hampshire, lawmakers were focused on preventing and cleaning up oil possible spills from just one pipeline: the Portland-Montreal Pipeline, the only hazardous liquids pipeline in the state. It is partly owned by Portland Pipe Line Corp.
"They have, by and large, been good neighbors, but you look around the country and you see some of the problems that have occurred," said state Sen. Jeff Woodburn, who sponsored the New Hampshire bill. "I think it's pretty important to take steps toward giving more authority, more autonomy, to the states to be more engaged in the potential of a spill."
The 236-mile line consists of three separate pipes built to carry conventional crude oil from Maine, through New Hampshire and Vermont, and on to refineries in Montreal and Ontario. Two of the pipes are still carrying varying amounts of oil, while a third was retired in 1984.
What worries state officials and environmentalists is that the Portland-Montreal pipeline could be reversed and used to carry tar sands oil to Maine's coast for export. Canada approved what could be the first part of this plan—a reversal on Enbridge Inc.'s Line 9b so it can deliver Alberta's tar sands to Montreal.
The Portland-Montreal pipeline runs through New Hampshire's picturesque northern region, crossing more than 70 streams and wetlands, including two major rivers, according to Brown, the legislative coordinator for New Hampshire Audubon. Brown and others are concerned that oil spills involving dilbit are harder to clean because globules tend to sink in water.
"Our North Country economy is primarily based on recreation, so to have something up there that damages wetlands and rivers would really be catastrophic for those communities," said Brown.
"That got us looking at what [protections are] in place," he said. "And there really isn't a lot at the state level...there is a heavy reliance or faith in the federal government that it's going to take care of things. But the spill in [Michigan] and some of these other spills have shown that that is not the case."
Once the governor signs it, the New Hampshire law will give the state's department of environmental services the authority to craft pipeline spill regulations to cover inland oil transit. Currently, that agency is in charge of marine spill prevention and response.
The catch is that the new law won't come with any new funding—and least not yet. A proposed fee ran into opposition and was dropped from the legislation.
"Our department of environmental services was very generous to accept additional responsibility without additional money," said Brown. "They saw enough urgency there to doing this, enough benefit to doing it that they said, 'let's go forward, and we'll figure out the funding part of it some other time'...they were eager to have that tool to make sure the plans are better here in the state."