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ND resists BNSF push to keep oil-by-rail volume secret

BISMARCK, N.D. — BNSF Railway, the nation’s main mover of crude oil by rail, has pressured states to sign confidentiality agreements barring public release of estimates of how much Bakken crude they move and where — a new requirement from the federal government.

A May 7 executive order from the U.S. Department of Transportation forced major Bakken shippers to provide states with estimates of how much of the light crude moves through each county weekly, with updates when those volumes change by more than 25 percent.

The order came after a year marked by several fiery accidents involving Bakken crude trains, including the Dec. 30 derailment in Casselton, N.D.

But facing a deadline at the end of the week that, by law, would halt all its Bakken crude traffic or impose a $175,000 daily penalty, BNSF spokeswoman Roxanne Butler says the company will provide those estimates despite North Dakota’s refusal to sign the confidentiality agreement.

In a statement, BNSF said it trusts states will “treat this data as confidential, providing it only to those with a need-to-know for security and planning purposes and with the understanding that people who receive the data will continue to treat it as confidential.”

A spokesman for Canadian Pacific Railway — the other major freight railroad in North Dakota — said the company did not ask states to sign a confidentiality agreement, but rather CP believes that by accepting the data, states are “acknowledging and agreeing to the non-disclosure of this information.”

As of close of business Friday, North Dakota Department of Emergency Services spokeswoman Cecily Fong said the state had not received estimates from BNSF or CP.

CP spokesman Ed Greenberg said the company’s records show it submitted estimates to North Dakota and other states earlier this week.

One short-line railroad has provided the data without a request for confidentiality, Fong said.

The DOT’s executive order specifically allows railroads to require “reasonable” confidentiality agreements, and cautions that the shipment reports are intended only for state and local first responders — not the general public.

But in North Dakota, state officials didn’t sign BNSF’s agreement because they feared the state’s open-record laws wouldn’t allow them to withhold it from the public. And the State Emergency Response Commission — the entity that will receive the estimates — feels it can’t ensure confidentiality after forwarding data to local first responders.

“After it’s left our hands … we can’t guarantee that it’s going to stay confidential,” Fong said.

Homeland Security Director Greg Wilz will recommend not signing the agreement at a June 25 SERC meeting, Fong said.

The Bakken’s booming oil production, combined with a lack of pipeline infrastructure, has pushed an unprecedented amount of crude onto the rails. Almost 800,000 barrels of crude left on trains daily late last year — up from just 100,000 barrels daily in 2011, according to industry estimates.

But the state hasn’t had a firm handle on how much crude oil is moving by rail. Its estimates are calculated by subtracting other transportation methods, such as pipeline and truck, from total oil production.

Asked whether there’s any appetite in state government to provide the public with estimates of how much Bakken crude moves through North Dakota communities, Fong said: “I think there would be a will to do that.”

“We just don’t want it to be too specific to a certain spot that they can be used in a dangerous way,” she said.”