Legislation that boosts access to railroad data leaves out the public

Wreckage, debris and smoke still lingered days after the April 15, 2023, train derailment in Rockwood, near Moosehead Lake. Courtesy of the Maine Land Use Planning Commission

Maine lawmakers soon will vote on a bill that would require freight railroad companies to better inform state officials about hazardous materials that they are transporting through the state.

The Judiciary Committee voted unanimously this week to pass an amended version of the bill, An Act to Remove the Confidentiality of the Transportation of Hazardous Materials by Railroad Companies.

The bill’s intent is to expand the types of information railroads are required to provide to the state so that emergency management and public safety agencies can better prepare for potential rail disasters. Railroads would be mandated to offer training to public safety and emergency management departments, submit recurring reports on routine inspections and hazardous-material transportation, and file expansive reports after a train derails while carrying hazardous materials.

But the bill, L.D. 1937, has moved away from its original aim, which was to allow members of the public to access information about what hazardous materials are moving through their backyards.

“This is really about expanding the state’s own knowledge about what is being carried on trains through our neighborhoods and towns, but not to the degree in which it becomes burdensome,” House Speaker Rachel Talbot Ross, D-Portland, told the Judiciary Committee at a work session on Wednesday. “This is a very different bill … this is not the public gaining a lot more access to what’s happening when, where and how with trains.”

INSPIRED BY RECENT EVENTS

Talbot Ross originally introduced L.D. 1937 as an emergency bill last May following a train derailment in western Maine.

In April 2023, a freight train owned by CPKC (formerly Canadian Pacific) derailed in Rockwood, near Moosehead Lake. Three locomotives and six freight cars left the track, causing a small forest fire and injuring three crew members. Two of the derailed cars carried hazardous material and came to rest near the cars and locomotives that caught fire. During the cleanup, hundreds of gallons of fuel spilled into local soil and waters.

Several locomotives and rail cars burn after a freight train owned by CPKC derailed April 15, 2023, near Rockwood along the shores of Moosehead Lake. State agencies later determined that CPKC violated anti-pollution laws by not removing hazardous materials from the site in a timely manner. Maine Forest Service via AP

State agencies later determined that CPKC had violated anti-pollution laws by not removing hazardous materials from the site in a timely manner, but Maine narrowly missed a much larger disaster.

The CPKC derailment was not Maine’s first serious and potentially dangerous train derailment. And a Portland Press Herald investigation published last year revealed numerous widespread issues with freight rail operations in Maine, including poorly maintained lines, unreported accidents and secrecy around the hazardous materials transported through the state.

Talbot Ross was alarmed by the lack of transparency from CPKC and how little information the state was able to share. That’s in part because of a law the Legislature passed in 2015 taking away the public’s right to information about hazardous material transportation.

“We should not witness what happened in East Palestine (Ohio) and Rockwood and understand that only when a disaster is taking place is when the public has a right to know,” Talbot Ross said at a public hearing last spring.

The Feb. 3, 2023, derailment in East Palestine of a Norfolk Southern train carrying toxic chemicals triggered evacuations and an environmental disaster crews are still working to clean up.

Talbot Ross’ bill sought to repeal that 2015 law and it had broad bipartisan support.

But as lawmakers debated last year, it became clear the bill needed more work, so it was carried over to the current session. When the bill was brought back to the Judiciary Committee for a work session on Wednesday, it looked entirely different.

The proposal now mandates safety and disaster-response trainings. It also includes additional measures to expand the state’s oversight of the freight rail industry with a more extensive reporting process.

Some railroad companies say they already do this work. CSX, which owns 531 miles of rail lines in the state, held a responder incident training in Portland in October 2023.

Railroads also will have to submit prevention and response plans that include environmental impact analyses to the Maine Department of Environmental Protection. Railroads also will have to submit reports to the commissioner of the Maine Department of Transportation with information on their routine inspections. And the department would have to conduct extensive investigations following a derailment.

The state has little authority over the freight rail industry. It cannot mandate any regulations, inspect private rails or issue safety violations. Railroads are required to provide the state with information when they are transporting trains through the state with a high-level of specific hazardous materials onboard. But the Maine Emergency Management Agency says that information is very limited and generally not in real time.

“This is really about elevating that transparency, and accountability to the state so that the state can be, in some cases, parallel to the federal government on what’s happening with training,” Talbot Ross told the Judiciary Committee this week.

EXCLUDING THE PUBLIC

While officials will have access to more information under the proposal, the public will not.

Bill co-sponsor Rep. Tavis Hasenfus, D-Readfield, had said that if the public knew what kinds of hazardous materials were being transported, they would know how to respond to a disaster.

“If there was an alligator in your pond, it would be nice to know, so that you know, ‘OK, well, I shouldn’t go swimming,’ ” Hasenfus said last year. “It’s just like knowing what is on those rail lines to know, ‘If there is a derailment, I need to leave.’ ”

The railroad industry widely opposed the bill when it was first introduced, saying it would create security risks such as train robberies and environmental terrorism.

“The possibility that such information may be obtained by an individual or group with nefarious intent and used to identify potential targets or to exploit vulnerabilities increases dramatically,” CPKC’s Arielle Giordano said of the bill’s potential impact in May 2023.

Others suggested that railroads also want to shield this information from the public to prevent their competitors from trying to steal business.

The public wouldn’t be able to access all information that the state knows about how freight trains are transporting hazardous materials – which would be a lot more substantial thanks to the bill’s other measures.

The public will, however, be able to access information when a specific train derails. And that information could potentially be more expansive than what the Federal Railroad Administration publishes in its accident and incident reports 90 days after a derailment.

Hasenfus said lawmakers had to make compromises to ensure the bill’s passage. And while the public will have access to less information, he said, what’s most important is that the state can be better prepared.

“We felt that making sure that we got something done, that we could move the ball forward on this aspect was a lot better than having a rather contentious piece that might cause divided votes in the Legislature, something that not everybody could rally behind,” Hasenfus said. “We felt that the core elements of the bill are there and we would be OK with giving that up to make sure that we’re doing everything we can to make sure the public is protected and that we have the safeguards and the guardrails up that we want.”

In the process of writing this new version, lawmakers met with railroad representatives to find that middle ground.

“The final outcome in committee was a result of work with CSX, the Department of Transportation, the Department of Public Safety and the Maine Emergency Management Agency with the end result of increased preparedness, municipal and public notice requirements, and financial penalties in the incidence of noncompliance,” said Mary-Erin Casale, Talbot Ross’ spokesperson.

And the new bill ultimately has CSX’s support.

“We very much appreciate the opportunity to work with the speaker and the bipartisan sponsors of the bill to work towards this language and recognize there’s a lot that’s changed from the initial draft,” CSX representative Andy Cashman said. “We think this, from our point of view, is a really excellent compromise.”

With a unanimous vote, the bill now heads to the floor for votes in the House and Senate.