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Tear up the non-disclosure agreements for Bakken crude

Editor’s note: In this article Denise Rucker Krepp, former Special Counsel to DOT General Counsel, Senior Counsel on the House Homeland Security Committee, and author of the 9/11 Act rail provisions, gives state, local officials a simple piece of advice regarding NDAs they signed with railroad companies regarding transportation of Bakken crude oil: Tear them up. They’re against the law.

This summer, state and local officials in Pennsylvania, New York, and Washington state were asked to sign NDAs in order to receive information about the transport of Bakken crude through their jurisdiction. The NDAs violate the rail security mandates established in the Implementing Recommendations of the 9/11 Commission Act. State and local officials who have signed these agreements should tear them up and tell the rail carriers to reread the 2007 law.

After the Madrid and London rail and mass transit bombings in the mid-2000s, Congress passed the Implementing Recommendations of the 9/11 Commission Act. The Department of Homeland Security was tasked with completing a national rail strategy, approving rail carrier security plans, and reviewing security exercises. These mandates were specifically established because Congress was concerned that the department was focusing too much attention on aviation security. The European attacks exposed glaring domestic vulnerabilities but DHS was moving slowly to address them.

Fast forward seven years and the vulnerabilities still exist.  The Lac-Megantic accident demonstrated the risks associated with shipping Bakken crude by rail. The accident, however, did not stop crude by rail shipments. Instead, shipments grew as rail carriers refused to share information with state officials.  The lack of communication became so problematic that in May 2014, Secretary of Transportation Foxx issued an emergency order requiring them to do so.

Secretary Foxx shouldn't have had to issue an emergency order. The 9/11 Act requires rail carriers to share information with local officials and conduct security exercises. The exercises are supposed to be as realistic as practicable and DHS is required to evaluate them. Sadly, this isn't happening; too many first responders are reporting that they are not prepared and still in the dark about rail cargo shipments.

As the author of the 9/11 Act rail provisions, it's my recommendation that governors and local officials contact DHS and request copies of the rail carrier security plans and the exercises that have been conducted in their jurisdiction. A successful response and recovery operation will be dependent upon state and local maintained resources and the men and women who are responsible for these resources should know how the rail carriers expect to use them.

I also recommend that governors seek clarification from DHS on the sharing of information with local communities. Congress directed DHS to notify communities and local governments in the areas in which the security exercises are held. The notification isn't simply that an exercising is occurring. Rather, the expectation is for local communities to participate in the exercises, especially those involving dangerous substances like Bakken crude.

Early and robust community involvement in the planning process will help first responders properly prepare for the next Lac Megantic. With the increased number of Bakken crude by rail shipments, it's not a question of if but when. This reality dictates greater information sharing, not legal agreements silencing those who are responsible for the safety of local communities.


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