gas tankers

A rail tanker loaded with liquid petroleum gas is parked on an old rail spur near Rice Lane in Bennington. The Select Board is once again considering the town's option for controlling annual storage of the flammable material by Vermont Rail System.

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BENNINGTON — Select Board members are still considering their options for regulating the liquid petroleum gas rail tankers that are parked each fall in North Bennington.

However, board members and Assistant Town Manager Dan Monks said Monday the town has been advised by legal counsel that effective local regulation in this instance “would be a longshot.”

Monks said that’s because federal regulation of railroads supersedes local or state regulation, as the town and state lawmakers have learned from past efforts to deal with the annual storage of 33,000-gallon tankers holding the flammable, hazardous material.

The board was responding to a presentation Monday from Bennington College students and Professor David Bond, who urged the town to attempt a local ordinance even if it will be challenged by railroad and gas industry companies.

‘BLAST ZONE’

Student Isabel Harper, who also spoke to the board at a previous meeting, and Bond reiterated concerns that, although rare, a fire and explosion involving one or more of the cars would be devastating for a wide swath of the village, which includes the college.

In a column in the Banner, Bond and the students described a wide estimated “blast zone” should an explosion occur, based on rail accidents elsewhere and research on the threat posed by the pressurized fuel.

Harper and Bond added that derailments have occurred in recent years in North Bennington and near Hoosick Falls, N.Y., when tanker car wheels slipped off tracks while cars were being moved.

In each case, they said, the incidents occurred not far from an embankment, over which the cars might have tumbled and possibly caught fire or exploded. Any explosion would likely “overwhelm the emergency [personnel] response,” Harper said.

Vermont Rail System officials have said the material is safe because the cars are not moving, as when serious accidents have occurred elsewhere, and the rail tankers are monitored by railroad personnel.

Harper noted that from 60 to 120 tanker cars have been parked between Rice Lane and the North Bennington rail station since 2017 by Vermont Rail, prior to shipment during cold weather.

The railroad, which also has parked tankers in other Vermont towns, said the strategy was developed after a bitter cold winter a decade ago, when railyards in the region became snarled because of snow and freezing temperatures, threatening needed fuel deliveries.

Bond said other communities in this region, including Albany, N.Y., have also seen the parked tanker cars in recent years.

LOCAL ORDINANCE?

The Select Board was urged to create an ordinance on the safe storage of the flammable material, including prohibiting it from within 1,000 meters of residences, schools and hospitals, and limiting the amount or material allowed in each parked rail tanker.

If the railroad sought to create a liquid petroleum storage facility, multiple safety regulations and storage requirements and specifications would apply, Bond said, and those would be expensive for Vermont Rail to comply with.

Board member Bruce Lee-Clark said at one point that it appears the railroad is “abusing a gray area of the law,” by in essence creating a storage area for a hazardous material.

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He also asked whether Harper was aware of any community regulation elsewhere that is effective against these situations, but she said wasn’t aware of any.

Bond and Harper contended, however, that a December 2019 email response from the Federal Rail Administration to Vermont’s congressional delegation indicated that if the rail cars are parked and not “in transit,” then the “federal preemption [concerning local regulations] does not apply.”

Monks said that the town also received a copy of the email from the administration, and the town also has links to case law that applies to local regulation that was struck down in the courts.

The email from the administration to U.S. Rep. Peter Welch’s office, said in part, “In this case, the LPG cars were shipped to the location under a waybill that terminated at that location. The termination of the waybill moved the cars from ‘active’ transportation into ‘storage.’ ... Once the car is removed from transportation (off of the nationwide rail network main line) and moved into storage, federal preemption does not apply. The storage of the cars can be governed by applicable local regulations (permitting, fire codes, etc.)”

WAYBILLS

There is an outstanding question of whether the parked railcars have “waybills” attached, or documents stating the destination and where the cars were being shipped from, Monks said. He said the town has asked for help from the Vermont congressional delegation in determining the car status.

If the waybill information is obtained, he said, town counsel would be asked for a further opinion on whether a town ordinance might be effective.

But after seeing case law in which local regulation elsewhere was overturned in the courts, “It looked like it would be pretty difficult to regulate this,” Monks said, adding that the situation appears “an uphill battle.”

Lee-Clark said the town also would have to consider that it would be going up against gas companies and the railroad, which have “deep pockets” to challenge local regulation and typically have political influence at the congressional level.

“This is very disturbing,” said board Chairwoman Jeannie Jenkins, especially since the town hasn’t been able to learn, despite repeat storage of the tanker cars locally, what the town might actually do to control it.

The town is willing to work with its federal lawmakers, she said, but they have not suggested a definite course of action.

‘A LONG GAME’

Resident Al Bashevkin said the town might better “play a long game” by working with lawmakers, and with any other communities that are having a similar experience, toward revising federal law to address this specific type of hazardous material storage.

Harper and Bond urged taking the local step of creating an ordinance to help bring pressure for change. The town could “become a model” for other communities, Harper said.

“Everyone agrees LPG trains should not be parked in our neighborhoods,” Bond said in an email on Tuesday. “But that consensus has not moved Bennington one step closer towards doing something about these bomb trains for five years and counting. Our democracy is not working as advertised.”

Concerning the issue of obtaining waybills for the parked tankers, “the train company often claims the information is proprietary,” Bond said. “The congressional delegation can be more persuasive in the ask.”

Jim Therrien writes for Vermont News and Media, including the Bennington Banner, Manchester Journal and Brattleboro Reformer. Email jtherrien@benningtonbanner.com


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