The boom of crude oil in North America leads to the transportation of ethanol and petroleum on America’s railways.  Oil train accidents are on the rise, with 70 deaths from these accidents reported as of May 2014, and the numbers are expected to rise sharply over the coming months.[1] These accidents create huge potential for related litigation, and they create many questions for the railroad industry, many of which can only be answered by railroad safety experts.


 

An environmental group, ForestEthics, created a map of every oil train route in the United States and found some startling information. The organization uses statistics from both the railroad industry and the National Transportation Safety Board (NTSB), and found that oil train traffic in the U.S. and Canada has risen by 4,000 percent over the past five years.  It is reported that 25 Million Americans reside within the ‘Blast Zone’ of an oil train explosion. [2] 

Oil trains are, for the moment, the main method for transporting oil to various places in North America. The nearly five-year delays pertaining to the Keystone pipeline have led many experts to argue that not using the pipeline translates into overuse of America’s railways as the means for oil transport, which in turn means large numbers of accidents from a booming industry. According to the Pipeline and Hazardous Materials Safety Administration, the economic damage from oil train accidents and derailments has already nearly tripled since 2013, now reaching an estimated $10.03 million dollars, as of May 2014. Given that 2014 has already seen so much property damage and casualties from oil train explosions, many groups have been urging lawmakers to take a more careful look at ways to improve railroad safety. Railroad experts have become indispensable at every single level of the issue: from preventing accidents to assessing the damage and compensating victims in court-based claims. At this point, nearly every region of the United States has been affected by an oil-train accident, and over 25 million Americans live within one mile of a “blast zone,” or the area that would be impacted if an oil train were to derail.

The Department of Transportation (DOT) has been hard at work on ways to address oil train explosions and increase the measure of public safety. From civil engineers to railroad administrators, railroad industry professionals have attended high-level meetings with the DOT and NTSB to find ways to remedy the fact that the extreme demand for oil transport on railroads, coupled with the high amounts of personal and property damage, create a need address accountability. In terms of improving railroad safety, some agreement exists on certain issues with respect to oil train transport. The DOT has suggested a voluntary decreased speed limit of 40 m.p.h. for oil trains traveling in highly-populated areas. Many experts agree that lower speeds, coupled with stronger insulation and rehabilitated oil trains, might be a good way of addressing the issue and could sharply decrease the number of explosions. However, so far, the DOT measures are only voluntary, which leaves much room for litigation. Expert witness in railroad safety will surely be called upon to discuss what the appropriate speeds in a densely-populated area are and also to determine whether, in their opinions, trains that exceeded these speeds have been negligent and violated a particular duty of care to the public, giving rise to an action for damages. Since the measures the DOT has implemented are voluntary only, that debate is likely to be a major one, since no mandatory standard currently exists with respect to oil train speed. At that point, it will be up to railroad safety experts to establish these matters in court.

But speed isn’t the only problem that experts cite in noting their concerns over the alarming number of oil train accidents. One major issue deals with the train cars themselves. Many of these cars, perhaps because of the huge demand for oil transport, are older and in need of specific repairs, but industry leaders have argued that they lack the time to both keep up with the current demand for oil transit and to repurpose or rehabilitate older cars that lack certain safety devices. Beginning in June, the DOT decided to require railroads to “share more timely information with state emergency managers about trains’ cargoes and routes,” which may give attorneys some leverage in arguing that this mandate created a specific, affirmative duty of care on the part of oil transportation rails, and that violating such a duty would be a clear violation of a legal obligation, giving rise to damage suits.  Wolfe & King, supra. However, even as the DOT implemented its June requirement, some railroads have requested individual states to sign confidentiality agreements that would keep this information private, arguing that disclosure creates security risks for the transportation companies. Id.

The DOT Secretary, Anthony Foxx, has argued that each step that the Department or the industry takes in trying to fix the problem is a step in the right direction, but he points out that, “There’s been such exponential growth in the excavation of…crude oil that it’s basically outrun our normal systems.” Id. Foxx, who just became Secretary recently, claims that the Department meets daily to discuss new ways of improving railroad safety. In the meantime, however, his statement is telling: Because the growth of the industry has happened so fast, regulation has not been able to keep up. Any time that such a situation exists, litigation is what remains to fill the gaps. Railroad safety consultants are needed in a big way: to help craft voluntary industry guidelines and standards, to address what mandatory policies the DOT should adopt to regulate oil trains, and to assess the damage and elements of negligence once an accident occurs because, at the rate 2014 is shaping up, those accidents will continue, and only the experts know what is needed to prove who should be responsible when they occur.

Conclusion:

There has been considerable debate over where the responsibility for oil train accidents lies: Is it with the trains, which admittedly are using older cars that may lack insulation or safer oil tanks, or is with the actual railroads themselves, since some accidents have been shown to have been caused by faulty tracks, not by dangerous train cars? Secretary Foxx’s strategy of having daily meetings to discuss and improve oil train safety is a step in the right direction, but for now, railroad experts will ultimately be the ones who assist the finders of fact in determining how to handle the massive amounts of oil train derailments and explosions that continue to be a problem for the public.

 

By: Kat S. Hatziavramidis, Attorney-at-Law


[1] Kathryn A. Wolfe & Bob King, “Oil Boom Downside: Exploding Trains,” Politco.com, Jun. 18, 2014

[2] Katie Valentine, “MAP: 25 Million Americans Live Within The ‘Blast Zone’ Of An Oil Train Explosion,” Climate Progress, Jul. 9, 2014.  http://thinkprogress.org/cimate/2014/07/09/3457911/map-oil-train-blast-zone/