Oklahoma officials are taking a second look at confidentiality agreements signed with railroads preventing disclosure of information to the public about shipments of oil from the fast-growing Bakken shale formation.
After inquiries last week by The Oklahoman, the Oklahoma Department of Environmental Quality said a commission acting as the clearinghouse for first responders on hazardous cargo information entered into confidentiality agreements with three railroads. The agreements prevented the release of the oil train shipment information to members of the public.
But Thursday, officials said agency attorneys are taking another look at the agreements after the Federal Railroad Administration said the reports do not contain “security-sensitive information.” Oklahoma officials previously withheld the information under an exemption to the state Open Records Act regarding “information relating to terrorism.”
Skylar McElhaney, DEQ spokeswoman, said the Oklahoma Hazardous Emergency Response Commission initially acted under guidance from the federal Transportation Department on how to treat the reports about oil shipments by rail from the Bakken in North Dakota.
“Now that DOT and the Federal Railroad Administration have both affirmed that details about rail shipments of Bakken oil are not security sensitive, DEQ’s legal staff is looking into the validity of the non-disclosure agreements,” McElhaney said in an email.
Monty Elder, a DEQ employee who heads the commission, sent emails Thursday to BNSF Railway Co., Union Pacific Railroad Co. and Stillwater Central Railroad telling them of the possible changes in the confidentiality agreements signed by the commission.
“The only other rationale for the non-disclosure agreement is UP’s claim of confidential business information,” Elder wrote in one email to Union Pacific. “OHMERC will not be able to continue in the agreement on this basis unless UP submits documentation to substantiate the confidentiality claim.”
Responding to accidents
Oklahoma is a key state for oil shipments from the Bakken, mostly because of its central location and oil storage terminals in Cushing.
A BNSF official last year said 45 percent of its oil trains move to, from or through Oklahoma.
In May, the federal government ordered railroads to tell state authorities about shipments of Bakken crude oil, which preliminary tests show is more flammable than other types of crude oil. The emergency order came after several high-profile accidents, including one in Canada last year that killed 47 people.
The order from the federal Transportation Department said railroads should notify state officials of trains carrying more than 1 million gallons of Bakken oil, or more than 35 tank cars.
The information is supposed to be shared with first responders in case of an accident.
Confusion over how to treat the reports has led to patchwork disclosure across the country. Some states, such as New Jersey, Minnesota and Ohio, have denied public access.
Others, such as Oregon, Virginia and Washington, have determined the oil train shipment information can’t be withheld.
Instead of signing confidentiality agreements provided by the railroads, Washington told the railroads the information would be released unless a judge ordered an injunction against it, said Mark Stewart with the Washington Military Department’s Emergency Management Division.
“Generally, the railroads said they’re not going to seek court action,” Stewart said.
Washington has posted the first of the Bakken oil train shipment monthly reports on the Military Department’s website. They show the number of oil trains passing through each county, as well as safety information and the composition of the oil.
“There’s probably nothing in those reports that someone who wanted to sit at a railroad crossing couldn’t figure out,” Stewart said.