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Rail companies sue Md. to stop disclosures under Public Information Act

Danny Jacobs//Daily Record Legal Affairs Writer//July 28, 2014

Rail companies sue Md. to stop disclosures under Public Information Act

By Danny Jacobs

//Daily Record Legal Affairs Writer

//July 28, 2014

Two national railroad companies that transport crude oil have sued the Maryland Department of the Environment to prevent the release of information about their shipments.

Norfolk Southern Corp. and CSX Transportation Inc. each filed suit last week as MDE was preparing to disclose the information under the Maryland Public Information Act.

Under the act, MDE had reached the 30-day deadline for responding to the request, filed by reporters from McClatchy Newspapers and the Associated Press. However, due to the filings by Norfolk Southern and CSX, the state will hold onto the records until a judge rules in the cases, according to court filings.

Gary Sease, a spokesman for Jacksonville, Fla.-based CSX Corp., said in an email the company’s motion is the first time it has gone to court to challenge the disclosure of crude oil transport information. Environmental agencies in several other states have released similar information despite protests from rail companies. Other states, including Delaware and Pennsylvania, have denied open records requests for the information.

The reporters requested the information on June 9.

In May, the U.S. Department of Transportation issued an emergency order requiring railroad carriers transporting a million gallons or more of crude oil from North Dakota’s Bakken region to notify state emergency response officials about shipments, including routes and the number of trains expected to travel per week through each county within the state.

The move came a week after a CSX train derailed into the James River near Lynchburg, Virginia. About 350 people had to be evacuated as 30,000 gallons of Bakken crude spilled into the river and ignited.

According to the New York Times, the James River derailment followed a series of similar accidents, including one in 2013 in which 47 people were killed near Lac-Mégantic, Quebec.

The incidents led the federal Department of Transportation to deem rail shipments of Bakken crude oil an “imminent hazard” to the public, the Times reported in May.

In its motion for injunctive relief, CSX said federal law requires it to treat information on crude oil transports as confidential. The company said it only released the information to a state MDE official after the official signed a non-disclosure agreement.

Citing “highly sensitive confidential routing information… that could be detrimental to transportation security and public safety if publicly disclosed,” the agreement prohibits emergency officials from disclosing the information to the general public or providing the information in response to any open records request without prior written consent from CSX or giving the company time to respond to the request or seek court protection.

“The State of Maryland entered into a formal confidentiality agreement with CSX before we provided the information,” Sease said Monday in an email. “We are simply asking the court to enforce that agreement.”

But the Office of the Maryland Attorney General has countered the nondisclosure agreement is “null and void” in part because the agreement contravenes the state’s Public Information Act.

“There is no [nondisclosure agreement] that the parties can enter into that would allow anything other than compliance with the requirements of the Maryland Public Information Act,” wrote Ellen W. Cohill, an assistant attorney general for MDE, in a June 13 letter to CSX.

Cohill invited CSX to comment as MDE determined what information should remain confidential in response to the reporters’ requests.

CSX objected to the release of the information, arguing it contained “confidential commercial information” that is protected under the Public Information Act, according to the company’s motion. But last week, MDE officials informed CSX the information would be released.

“The Department believes there are no applicable exemptions that would prevent the disclosure of public records to the public,” the letter stated, adding the information would be released Thursday if the company did not take the issue to court.

CSXT filed its motion Thursday, one day after Norfolk Southern filed its motion.

News of Norfolk Southern’s motion was first reported by the McClatchy chain.

Separately on Wednesday, federal transportation officials announced proposed rules for increasing the safety of transporting crude oil and other flammable materials by rail.

A spokesman for Virginia-based Norfolk Southern said the company does not comment on pending litigation. Jay Apperson, a spokesman for MDE, also declined to comment.

Both rail companies are represented by lawyers from Wright, Constable & Skeen LLP in Baltimore.

A hearing date has not been scheduled in either case, Norfolk Southern Railway Company v. Maryland Department of the Environment, 24C14004367 and CSX Transportation Inc. v. Maryland Department of the Environment, 24C14004378.


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