A trial of three employees of the bankrupt Montreal, Maine and Atlantic Railway (MMA) had a brief opening session in Lac Mégantic, Quebec, May 13. They are charged with criminal negligence in the oil train crash and conflagration on July 6, 2013, that killed 47 people and destroyed the center of the town.
The three - engineer Thomas Harding, manager of operations Jean Demaître, and traffic controller Richard Labrie - were formally charged and then released on bail. Their next court appearance is September 11.
Nearly one year after the disaster, a great many questions remain unanswered about how the disaster happened and who was ultimately responsible. The circumstances surrounding this trial suggest it may not get to the bottom of the matter.
There was no public inquiry into the disaster, notwithstanding the fact that 47 people lost their lives and the disaster cast a huge shadow over railway safety in North America.
The explosive growth of oil by rail traffic in the United States and Canada and the failure to do anything about safety except tinker around the edges of the matter all but guarantee that the string of oil train crashes that followed the Lac Mégantic tragedy will continue. And that's without addressing why oil production is expanding in a climate-warming world.
A Show Trial in Lac Mégantic?
Show trials tend to be retributive rather than correctional justice, and also conducted for propagandistic purposes - Wikipedia
Is it a show trail underway in Lac Mégantic?
There was no public inquiry into the disaster, notwithstanding the fact that 47 people lost their lives and the disaster cast a huge shadow over railway safety in North America. No call for an inquiry was voiced by the major parties in Quebec's April 7 provincial election. The election included no discernable discussion of the terrible events of the night of July 5-6, 2013.
Business interests involved have never answered why they thought it proper in 2012 to begin moving highly dangerous oil trains across more than half the breadth of North America - from the Bakken oil field in North Dakota to Saint John, New Brunswick - with little to no public notification or debate.
The oil trains that were running through Lac Mégantic still make their way to Saint John. They have been switched onto the all-Canadian CN main line connecting Montreal to Saint John, meaning they continue to pass through some of the largest cities on the continent - including Minneapolis-St. Paul, Chicago, Toronto and Montreal - and through countless smaller centers.
The opening session of the trial on May 13 was preceded the day before by a big show put on by prosecutors. A SWAT team of Quebec provincial police descended on the home of Thomas Harding south of Montreal to arrest him. They arrived with sirens wailing and automatic weapons drawn. Harding was working on his boat in his back yard.
Months earlier, Harding's lawyer told police that his client would be ready to surrender to the court if and when a trial was held. Instead, he was demonstrably "taken down" in his neighborhood by a SWAT team and led away in handcuffs.
Harding was then interrogated for ten hours at Montreal's Parthenais jail. His lawyer says his only contact with his client was a two-minute phone call.
The reaction was near universal - locals hold federal railways regulators and the owner of the former MMA responsible.
Local residents are asking why no charges have been lodged against the higher-ups at MMA. On May 13, the three accused were led into court in handcuffs. A large crowd of residents gathered to watch and something unexpected was reported by the journalists present - there were no expressions of hostility to the accused. On the contrary, many residents voiced that the wrong people were on trial.
Nancy Guay, a hotel worker who used to give Harding his wake-up calls after overnight stops, said the silence of the crowd would have been soothing to the accused. Speaking of Harding, she said, "I said to myself, 'Poor him . . . They're not the ones who should be there.' "
The Montreal Gazette devoted an entire page of its edition of May 14 to local response to the trial. The reaction was near universal - locals hold federal railways regulators and the owner of the former MMA responsible.
"I believe there should be charges, but for the right people," said Danielle Lachance Champagne. She lost her daughter in the disaster. "The big boss - he should be first. He was the big boss of the MMA, and he came here [four days after the disaster] with this attitude like he wasn't affected by what happened, by all these people whose lives were lost."
The bankrupt MMA is nominally named as a co-accused in the trial, but none of its top officials are charged, including Edward Burkhardt, president of Rail World, the parent owner of MMA.
A reader of the local weekly newspaper L'Écho de Frontenac wrote online, "What a farce! It's incredible how all the attention is focused on everything, but the real problems - a federal government that has lessened rail regulations; federal inspectors who closed their eyes despite formal complaints [about the condition of the rail line]; a company that defied all safety regulations to earn more profits; and a company president who cannot be charged because it is said he can't be assumed to know everything going on in the company."
"I hope, at the bottom of my heart, that they don't pay for the mistakes of their bosses," Bernard Boulet told Canadian Press. His sister Marie-France was killed in the inferno. "I sincerely hope that they don't get anything more than 25 hours of community service and that it stops there."
Burkhardt went down in infamy in Lac Mégantic when he took four days to show up after the disaster and then declared that he, too, was a victim of the disaster by virtue of losing the value of his investment in MMA. He immediately blamed Harding for the disaster, saying that the engineer had failed to properly set stationary brakes on the train as he left it for his overnight rest.
Climate Activists in Maine on Trial for Opposing Oil Trains
The trial in Lac Mégantic is not the only oil-train related trial underway in North America. On May 22, two activists appeared at a pre-trial hearing in a court in Auburn, Maine, to answer to a charge of criminal trespass on Pan Am Railways last August 28. They were part of a protest that day organized by 350 Maine and Earth First!
Jessie Dowling of Earth First! and Douglas Bowen Jr. of 350 Maine sat down on the rail line in the center of Auburn. The Lewiston-Auburn metropolitan area has a population of 60,000.
Pipeline production is stalled because of environmental concerns whereas there are far fewer restrictions on oil train shipment and expansion.
Bowen wrote in a recent message to supporters, "We've built a strong case for conducting a "competing harms" defense. That is, we committed a smaller harm - criminal trespass on railroad property - in order to try to prevent a much greater harm. For this, we must demonstrate that the greater harm is "imminent" and also that we succeeded in achieving our goal of bringing increased awareness to the public and officials."
The judge in the case will now decide if the "competing harms" defense will be allowed. Seventy people rallied in support of the defendants.
Last June, six people were arrested for blocking an oil train in Fairfield, Maine. Their charges were later dropped.
Oil by Rail to Roll Anew in Lac Mégantic?
Bankruptcy judges in Quebec and Maine have approved the sale of MMA to Railroad Acquisition Holdings LLC, an affiliate of New York-based Fortress Investment Group. Some details remain to be finalized, but the new owner has renamed its acquisition the Central Maine and Quebec Railway. It wants to begin to move general cargo trains along the restored track through Lac Mégantic in the coming days and oil trains within 18 months. The mayor of the town and the Quebec government concur.
The pressure to do so is intense because of the immense profits at stake. Pipeline production is stalled because of environmental concerns, whereas there are far fewer restrictions on oil train shipment and expansion.
In 2013, there were 450,000 carloads of crude oil and diluted bitumen (dilbit)* moved by rail in the United States (app. 300 million barrels). That figure does not include movements by Canada's two railways. About 10 percent of US crude oil production, 700,000 barrels per day, is moved by rail, most from North Dakota. So far in 2014, US carload movements are up 9 percent over last year.
According to the US Energy Information Agency, a near-equal amount of refined petroleum was moved on the railways.
According to Statistics Canada, railways in Canada moved app. 165,000 carloads of "fuel oils (eg. kerosene) and crude petroleum" in 2013, much of it into the United States. The number jumps to 237,000 when liquid petroleum gas (propane, butane, etc) is included. Carloads of fuel oil and crude petroleum were up 18 percent in January 2014 over the same month in 2013.
The figures will leap this year and next as a huge surge of western Canadian bitumen (and lesser amounts of conventional crude oil) hits the rails. Crude oil producers and shippers are building rail capacity in Alberta and Saskatchewan at a dizzying rate. Some is already operational.
The Financial Post reports that a total of 850,000 barrels per day of crude oil railway shipping capacity is under construction in Alberta. That's approximately half a million rail carloads per year and more than the amount that the Keystone XL pipeline would carry.
The company that wants to build Keystone XL is TransCanada Corp. On May 21, its CEO, Russ Girling, said the company is in talks with US customers about the rail alternative. "We are absolutely considering a rail option," Girling told Reuters during a news conference in New York.
To realize such a project, TransCanada would need to build its own rail capacity in places. Andrew Leach, an energy and environmental economist at the University of Alberta, notes, "They would need a permit to build a rail line, but it wouldn't be the same as trying to build a pipeline."
One of the largest operations under construction is being built by Kinder Morgan and Imperial Oil. It will handle 100,000 barrels of crude per day (bpd), approximately 1.3 unit trains per day, with an expansion capacity to take it to 250,000 bpd once further, feeder pipeline connections are made.
Two projects in Saskatchewan - in Northgate and Kerrobert - will see 70,000 and 168,000 bpd, respectively, of crude loaded daily. Not to be outdone, Manitoba will see a 30,000 bpd terminal come into service in Cromer.
By the end of 2014, some 550,000 barrels daily of crude oil or dilbit will be rolling out of western Canada.
In British Columbia, big business and the provincial government are threatening to unleash oil-by-rail on the province if citizen opposition continues to stall two proposed tar sands pipelines to the Pacific coast-Northern Gateway (to Kitimat BC) and Trans Mountain (to Vancouver harbor). The threat began to be voiced in the wake of the tragedy at Lac Mégantic and is restated in a recent editorial in the Vancouver Sun. The Pacific coast is the closest export route for the Alberta tar sands industry, and CN says it is all ready to ramp up shipments to the port at Prince Rupert.
Unbeknownst to the public, the Bakken oil being transported by the consortium was highly volatile, much more so than conventional crude oil.
Crude oil (diluted bitumen) export terminals are also planned, in Saint John, New Brunswick (Irving Oil), on the lower St. Lawrence River at Cacouna, Quebec (TransCanada) and in Portland, Maine. These three projects are in anticipation of the Energy East tar sands pipeline with its planned capacity of 1.1 million barrels per day and the proposed "reversal" of Enbridge Inc.'s aged Line 9 across southern Ontario. A portion can be fed by rail.
The Seattle-based Sightline Institute says that in the states of Oregon and Washington, 11 refineries and export terminals fed by rail are planned, under construction or already operating. The US Pacific Northwest could soon see as many as 1 million barrels of crude oil per day on its rail lines.
Port authorities in Houston and coastal Texas are gearing up for much more export traffic, notably of crude and product from Canada (US law currently prohibits the export of US crude).
California received a record volume of crude oil (diluted bitumen) from Canada by rail as it faces shrinking supplies from Alaska and within the state. It is the third-largest oil-refining state in the country. According to Bloomberg News, it received 709,014 barrels of crude from Canada by rail in December (approximately 1,100 carloads), a 4.9 percent increase from November and up from zero a year ago. Canada made up 67 percent of the state's total oil-by-rail receipts, compared to 6 percent from North Dakota.
The Fateful Night in Lac Mégantic
The disaster of July 6 was a perfect storm of corporate wheeling and dealing that highlights the extreme danger the industry represents to human health and safety. Beginning in 2012, a business consortium including Irving Oil, owner of Canada's largest oil refinery in Saint John, New Brunswick, and CP Rail, one half of Canada's railway duopoly, began transporting oil on trains from North Dakota to Saint John.
East from Montreal, the trains hit one of the continent's older and most poorly maintained railway lines, the MMA. It's the historic CP rail line that was built or cobbled together with existing track more than 100 years ago to connect Montreal and Atlantic Canada.
After a decade of battling regulators for the right to sell the line, CP Rail finally offloaded it in the mid 1990s. Several owners later, in 2004, the line was purchased by Rail World. That company specializes in operating railway short lines.
Unbeknownst to the public, the Bakken oil being transported by the consortium was highly volatile, much more so than conventional crude oil. That was kept quiet, though public awareness would have little immediate consequence because according to rail regulations, there is little or no difference in how different grades of petroleum products are transported. The only difference is in how they are labeled on the obligatory placard on each oil car.
In its pioneering investigative reporting of the disaster, the Globe and Mail learned that Irving Oil was aware of the volatility problem. The newspaper reported, for example, that Irving employees were changing the identification placards on empty rail tanker cars being sent back to North Dakota, indicating a higher-volatility product than the placards of incoming cars.
A Dec. 23, 2013 article in the authoritative Railway Age journal makes a further case that key safety information about North Dakota oil was ignored or covered up by the industry. It obtained a copy of a presentation by an Irving Oil representative to a meeting of the Crude Oil Quality Association in Seattle in June of that year. The article states:
In mid-December , Transport Canada criminal investigators obtained a warrant to search Irving Oil's refinery offices for the results of tests performed when crude is unloaded at Saint John. At issue is just who in the long chain of possession between loading terminal and refinery was aware that crude oil was being misclassified . . .
What the Irving presentation [in Seattle] shows is that the misclassification of the Lac-Mégantic cargo was not a procedural lapse but instead was consistent with widespread disregard for hazmat law at the transloading terminals where oil is received by truck or pipeline and often comingled in holding tanks before being loaded into tank cars, where it may be comingled again.
Harding was the sole operator of the fateful train, thanks to changes in railway regulations in Canada some years ago that permit railways to operate with only one crew member. (The "mainline" railway duopoly of CN and CP chooses not to exercise regulatory permission to do so.)
He had stationed the train for his overnight rest, leaving the locomotives running so as to keep air brake pressure applied. The train consisted of 73 oil cars and was stationed at the hamlet of Nantes on a gradual incline some 10 km east of Lac Mégantic.
Railways are refusing to divulge information to communities ahead of time of what dangerous cargos are passing through. They also say that rerouting of dangerous cargo trains around the largest population centers, if even possible, is too expensive and too inconvenient.
Railway sidings are equipped with a safety derailing device in case a stationary train begins moving onto a main line inadvertently. But this train was stationed on the main line because MMA and a local manufacturer had a habit of using the siding for storage of empty freight cars or loaded cars waiting for transport.
Harding was required by regulation to manually set brakes on a certain proportion of the oil cars before leaving the train unattended. After he bedded down for the night, a small fire broke out in one of the locomotives. Local volunteer firefighters attended to the fire and extinguished it.
Some reports say that MMA officials arrived and took control of the train. Other reports are less clear. Either way, the firefighters or MMA officials shut down the locomotives and left the train on its own. The air brakes lost their hold and so did the manual brakes. The train slowly began to coast into Lac Mégantic at 1 AM with no one on board. By the time it reached Lac Mégantic, it was rushing terrifyingly fast.
According to a timeline published by Canadian Press at the time, it was less than one hour between the time the locomotives were shut down and when the train began to move. CP wrote:
Midnight: The fire is extinguished and the engine is shut down. The Transportation Safety Board at a news conference Tuesday would not say who shut down the engine or who was last inside the train, key points as the rail company has said the shut down "may have resulted in the release of air brakes on the locomotive that was holding the train in place." Nantes fire department has said it shut off the engine in order to fight the blaze, and says that's the proper procedure as spelled out by the railway company. The railway suggested the fire department should have called the engineer to the scene before leaving.
The CP timeline says the train began to move at 12:56 am. Perhaps the trial will answer the question of who shut down the locomotives; who, exactly, was present; and why they apparently left the scene.
Harding was awakened after the derailment and explosions occurred at 1:15 am. Using a locomotive of a local manufacturer, he and others were able to pull some 10 loaded cars away from the hellfire.
Earthquake in Railway Regulation and Safety? More Like a Bump
To the casual observer and reader of headlines, the disaster at Lac Mégantic has deeply shaken how railways operate and are regulated. Not so. On April 23, the Canadian government issued new transport regulations that require trains carrying goods to travel slower in populated areas. It has told railways and shippers that older DOT 111 tanker cars must be replaced in three years by cars with higher crash protection (5,000 of the very oldest DOT 111 fleet must be withdrawn from service on Canadian railways within 30 days). There are an estimated 92,000 DOT 111s carrying crude oil and methanol in North America.
But railways are refusing to divulge information to communities ahead of time of what dangerous cargos are passing through. They also say that rerouting of dangerous cargo trains around the largest population centers, if even possible, is too expensive and too inconvenient. The government agrees.
Outgoing National Transportation Safety Board Chairwoman Deborah Hersman says the Department of Transport risks a "higher body count" from oil train accidents if it delays new safety regulations.
Just how much safer newer tanker cars may be is debated among experts. Safety ratings are measured at low speeds, less than 50 km (30 miles) per hour. The scientific measure of the puncture resistance of various tanker car designs is in its infancy. (Video or transcript of a two-day forum by the National Transportation Safety Board on the subject of oil train safety on April 22 and 23, 2014, can be viewed here.)
Canada's order to phase out older DOT 111's may turn out to be a public relations exercise, because the rail and oil shipping industries are refusing to cooperate in a similar measure south of the border. US regulators have urged companies shipping crude oil from North Dakota to stop using old tank cars "to the extent reasonably practicable." To that voluntary measure, the industry is saying "Thanks, but no thanks."
The American Petroleum Institute says that oil companies "hope" that within the next year, they can increase to 60 percent the share of tank cars that meet a stronger, voluntary standard agreed to by shippers and railroads in 2011.
Kari Cutting, vice president of the North Dakota Petroleum Council, says existing federal rules "are sufficient" and no additional measures are needed. "It's not proven that existing steel is going to prevent those breaches," she said.
She also said that newer, stronger DOT-111 tank cars have 14 percent less capacity than older tank cars. Making those cars the standard will require hundreds more trains to make up the lost volume, actually increasing the risk of accidents.
Outgoing National Transportation Safety Board Chairwoman Deborah Hersman says the Department of Transport risks a "higher body count" from oil train accidents if it delays new safety regulations.
In Lynchburg, Virginia, scene of a fiery oil train crash on April 30, the owner of a downtown restaurant says he and his customers "dodged a bullet" when the train crashed. He told Energy Wire that patrons of the Depot Grille restaurant were close enough to feel the heat from the April 30 derailment. "If the [tank] cars had buckled toward the plaza in front of us, or more than one car ruptured . . . I think the outcome would have been horrible, to say the least."
Fourteen wagons carrying crude oil derailed from a lengthy CSX train. Four of them dumped their loads into the St. James River, which eventually flows into Chesapeake Bay. Some of that oil burned on the river surface and banks.
On May 7, the US Department of Transportation issued an emergency order to require railways to improve reporting to state emergency officials about the movement of large shipments of Bakken crude oil. The order requires that trains hauling more than 1 million gallons of crude oil - the equivalent of about 35 tank cars - provide information on the trains' expected movements. The order also requires that railroads disclose the volume of oil being transported and how emergency responders can contact "at least one responsible party" at the railroad.
The Associated Press reports that the American Association of Railroads responded to the order by saying it will do "all that it can" to follow it.
The Petroleum Council is denying that Bakken crude oil is more dangerous than other forms of crude, notwithstanding the scientific studies as well as practical experiences showing otherwise.
The railway industry in North American is highly integrated across the US-Canada border. Who will prevail in three years time when Canada's new regulations on oil train cars are supposed to be in place - the Canadian government and recalcitrant Canadian railways, or the powerful oil and railway industry in the US? It's not hard to see how the latter will prevail, leaving Canadian regulations mired in controversy and lost in a swirl of misinformation.
What's more, if pipeline safety regulations are any measure, rail safety advocates should be very worried. Jeffrey Wiese, the United States' top oil and gas pipeline safety official, told an audience in New Orleans that the regulatory process he oversees is "kind of dying." He told several hundred oil and gas pipeline compliance officers the Pipeline and Hazardous Materials Administration (PHMSA), has "very few tools to work with" in enforcing safety rules, even after Congress in 2011 allowed it to impose higher fines on companies that cause major accidents.
"Do I think I can hurt a major international corporation with a $2 million civil penalty? No," he said.
The oil-train battle has exposed huge gaps in railway safety in North America, including the degradation of regulations over the years. It's why citizen advocacy groups are stepping up a fight for the safety and protection of communities, lands and waterways. In the United States, the term "bomb trains" is entering the lexicon of news reporting and popular language.
There is also the larger story of why oil-by-rail and other fossil fuel production and transport is expanding when science and reason scream not only to stop expanding, but to transition rapidly to vastly less energy consumption and from renewable sources. By its haste and its recklessness, the oil-by-rail industry is creating the public awareness that one hopes may lead to its rapid demise.
* In this article, the term "crude oil" includes the category of diluted bitumen (Alberta tar sands product). The Alberta tar sands are the third largest reserve of fossil fuel in the world. Close to 80 per cent of ‘crude oil' production in Alberta is tar sands product.
Oil Change International has just published a 30-page report examining the expansion of oil-by-rail across North America. It is titled, 'Runaway train: The reckless expansion of crude-by-rail in North America'. Read or download the report here. The report is accompanied by an interactive map that displays the current state of the industry and its planned expansions. A week of action has been called by environmental groups in the U.S. and Canada beginning July 6 (anniversary of the Lac Mégantic disaster) to 'Keep oil off the tracks and in the ground!'.