Current Emergency Regulations a Recipe for Disaster

Recently, the U.S. Transportation Department (DOT) issued an emergency order requiring railroads to inform state emergency management officials about large crude oil shipments. Specifically, the regulations required railroads to disclose the expected routes across country, volume of oil being shipped, and a responsible party.

This latest emergency order follows a late February emergency order by DOT requiring shippers to test oil produced from the Bakken shale region for accurate hazard classification of this extremely volatile oil, while also requiring transport of crude oil in the most sturdy state-of-art tanker cars. Earlier, DOT had issued violation notices and fines against tank car loaders in North Dakota for downgrading the hazard rating of crude oil shipments from the Bakken.

If shale oil produced by hydraulic fracturing or "fracking" requires extra precautions and safety procedures during normal handling and transportation to minimize harm to first responders and the public, then logic dictates that this ultra-hazardous oil should also require extra precautions and safety procedures during spill response.

The same state emergency management officials who deal with safe handling and transportation of hazardous substances also deal with emergency response to releases or spills of these materials. Spill prevention and response is required under the Superfund law for hazardous chemicals and the Clean Water Act and the Oil Pollution Act for oil. It's one thing to pass laws and entirely another to implement them, a duty which passes to the executive branch and regulatory agencies. In this case, these three pollution control laws are implemented by the Environmental Protection Agency through the National Oil and Hazardous Substances Pollution Contingency Plan.

Unfortunately, the EPA has not kept the national contingency plan current. The plan was written in 1968 after the first oil tanker wreck in England, the Torrey Canyon, proved to the world that international oil shippers had no contingency plan to respond to and cleanup oil spills. The U.S. plan was designed for tanker spills of conventional crude oil that floats and fouls surface waters and shores. It simply doesn't work for oils that explode like the Bakken shale oil -- or sink like tar sands oil (or even for deep sea oil spills like the BP Deepwater Horizon disaster).

The entire premise of the plan is a nonstarter for oil that is likely to sink or explode. This means ultra-hazardous oil is currently being shipped illegally without a viable contingency plan. It also means that the rapid expansion of ultra-hazardous oil and gas activities and increased frequency of spills have created large areas of our country with at-risk populations, not just in remote areas, but also populated urban areas. This is a recipe for disasters like Lac Megantic.

The more recent spills of tar sands oil and Bakken oil from pipelines and rail cars have demonstrated a need for a systemic revision of the national contingency plan. Yet the plan has not been updated with science from the Exxon Valdez oil spill, showing that even conventional crude oil is much more toxic to people and wildlife than thought in the 1970s when the early oil pollution laws were passed. More recent science has found that ultra-hazardous oils are extreme human health hazards for exposed communities, especially unborn babies and young children.

Given this situation, citizens, organizations, and First Nation Tribes are calling for EPA to revise and update the national contingency plan. Besides inviting public comment and participation in this process, EPA should also immediately promulgate emergency regulations designating ultra-hazardous oils as hazardous substances for purposes of spill response.

However, regulating by emergency orders gives the distinct impression that the government is wholly unprepared to deal with safe handling of ultra-hazardous oils. Maybe it's time to take a good look at what we are doing and where we are heading before creating an energy future that may be slowing national productivity, not building it.

National oil spill expert and author Riki Ott is spearheading national efforts to update the national contingency plan. Her latest book is Not One Drop (Chelsea Green). She is featured in several movies, most recently Dirty Energy (Cinema Libre Studio).