NOT SO GREEN  |  Delta 5, Day 3, PM

By steven d keeler | Oct 15, 2016
Source: NSG


Copyright (c)  2016 by NSG


11:00:30  Court is in recess for lunch.

1:18:45  Court resumes session.

[ It is apparent  that something has changed during the lunch break with respect to the quality of audio recorded.  The court room, and in particular, the judge  seems to be micro-phoned more closely, for perhaps better understanding.  At the same time, the room noises and voices seem to have a slight amount of reverberation introduced.  There is no explanation for this change. ]

1:19:12  Jury is called into court.

1:20:12 Defense calls F ( ? ).  Witness is sworn.  Witness name is F Millar.  Defense, Joyce is directed to proceed.  Defense asks witness to describe his background in the rail safety field.  Witness responds, well, I've been working in issues in transportation, in hazardous materials for about 30 years.  First of all, working with the environmental policy institute, then friends of the Earth, an environmental group in Washington, D.C.  In the course of doing that kind of work, I've testified in Congress, I've testified in several state legislatures, I've written some congressional language in bills and actually initiated one of the two major federal right to know laws that we have in the United States, the clean air act amendments of 1990, which regulate about 13,000 chemical facilities in terms of their need to provide to the public about their risks.  So, that was the earlier history and I've also consulted to the brotherhood of locomotive engineers, the rail union that's now within the teamsters union and a rail safety consultant with some insurance company that's looking at those kinds of risks. So, ( ? ) dangerous cargo's thru major cities.  The crude oil issue is much newer than that and has come up more recently ... um .... so, um but all of us are learning are on a high learning curve about that issue, right now as well.  Defense asks, have you reviewed any materials in preparation for today's testimony ?  Witness answers, yes, I looked at lots of materials just in general about the risks of crude oil by rail.  Defense asks, could you go into more detail about your legislative efforts ?  Witness responds, um ... well, the legislative efforts in terms of the congress were that, witness stammers, since I was kinda an expert about chemical safety and also hazardous materials transportation I was asked to submit some language for bills that would be used and, by the proponents in the congress and those things happened to be some cooperation between the Republicans and the Democrats in Congress, and we actually got some environmental laws passed that were quite good and so, um .... session 112 for example of the clean air acts of 1990 was what I initiated, and I provided the information to the legislative drafters and they put it into the bill.  Defense asks, and could you describe for us some of the safety and ( ? ) issues inherent in transporting these materials ?  Prosecution interrupts, speaks up, asks court to be heard outside the presence of the jury.

1:23:26  Court excuses the jury.

1:24:00  Court asks Sturdivent to continue.

Prosecution objects to this testimony.  His words are unclear at first, but it becomes clear that his objection is that the court spent the entire morning hearing about the dangers of transportation of oil and fossil fuels by rail lines, why does the court need to go over this again ?  Court asks Defense to respond to the argument.  Defense states, this witness, in comparison to earlier witnesses, has 30 years ( ? ) transportation of crud oil and hazardous materials and he also has more knowledge about the specifics of rail infrastructure, the safety of the cars involved and other specific things that a previous witness was not ( ? ) of the court.  And, as of relevance ( ? ) of the issues for us today, and in light of motivation ( ? ) for the defendants - the safety of the transportation of these materials.  Court turns back to prosecution.  Prosecution states, a previous witness, testified, at length about the design flaws of the railways, the amount going through now, all the dangers of the actual system, if they do spill, turn over or explode, previous went into that for over 15, 20 minutes.  Defense cournter with something [ his inability to speak clearly, with distinct pronunciation of each word and running words together make the initial part of his response sound like some foreign language ] ..... he mentioned about a more of the cause ... didn't have any of the specific expert testimony about issues relevant to these cars.

1:25:15  Court makes a ruling.

Court says, I considered previous witness testimony on these issues to be general in nature, relying on representations of counsel that were going to get me to more specific information from this expert witness.  Court allows testimony at this point and Prosecution can raise objections later, if he believes testimony to be duplication, and nothing more.

1:26:18  Jury re enters court.

Defense continues, asks witness to describe issues about the safety of the rail cars used of the transportation of these materials in our region ?  Witness answers, yes, in general there are about 7 major issues involved in the transporting of these cargo's, including the quality of the tank cars.  The very first problem is that the railroads have imposed on the industry and country, a brand new method of operation with crude oil, which is unit trains of crude oil, meaning trains that are averaging 100 cars, and they go anywhere from 80 to 150 cars.  These trains are hard to handle, in fact the union official for the Canadian union said that these cars are ... that, that, these trains are too long, too heavy and going too fast.  Witness, stammers, then adds, across the country, was kind of a new development that the railroads imposed.  They are using tank cars that the national transportation safety board has been saying for 30 years, are inadequate.  They don't use the words tin cans on wheels, but what they say in their diplomatic language is, they say, the DOT 111 tank cars in any serious collision or derailment, should be expected to lose its contents.  Defense asks, are these cars the most typical used in the ..... Witness interrupts question, answers, this is the vast majority of the fleet used for oil, is the DOT 111 tank cars and in fact there still going to be used for the foreseeable future because there's so many of them out there that replacing them is a very great, very difficult deal.  And, so, under the current situation that danger will continue.  Now the speed of the cargo's, ah he, you know, the union guy said there going to fast - the speed has been a very key point of contention because in part, .... um .... the national transportation safety board had a big safety forum in April of 2014 in which the main safety expert for the federal railroad administration, he said, publicly, after looking at our research about the puncture ability of these tank cars - if unit trains are moving at 30 to 40 miles per hour you cannot build a tank car that will withstand punctures at that speed.  You cannot build a tank car that will withstand punctures at 30 to 40 miles per hour.  So, that's a very severe bottom line because, that everybody in this big expert group of experts from the government and the, and from the industry turn and look at the railroad people and say what can you do for us about slowing down your trains.  And the railroad word was, well, not much, we've already agreed to slow them down to 50 miles per hour through most of the country and 40 miles per hour through a few of the big cities, but if we slow down our trains even further than that, we'll be slowing down lots of other peoples trains and I want you gentlemen to know, this is the head of the association of American railroads, saying, to this whole group, our ....  at this point, Prosecution objects, as hearsay.  Court asks Defense to respond.  Defense says, he's an expert, hes relying on the published opinion of another expert ....   Court interrupts, says, that's not what he said, he's talking about what some other person said, it's hearsay.  Defense asks court if he can re question the witness.  Court says go ahead.  Defense asks, was this a published .... witness interrupts, says, this was a video tape of a .... of a .... of a .... of a national safety forum in which the whole idea was to get the best experts from the government and the industry talking to each other in public - exactly for this purpose, to get the truth out there, and some of the truths were quite startling and it's clear that the railroad testimony was we are not going to slow down our trains to what would make it possible to not to have accidents, and derailments with punctures.  Defense asks, would you discuss with us some of the safety issues about the infrastructure of the rails ?  Witness states, these trains have been coming off the rails in great numbers, we've had lots of accidents and again, the secretary of the department of transportation said, publicly on television,  the infrastructure was not ready for this, we don't have an adequate structure there, everybody knows that and ( ? ) everybody wants to work on that but, um .... it's a serious problem.  There's crumbling bridges, and there's worn track and so forth and so the other thing is probably important for people to realize is that there's a whole ( routing ? ) aspect of this, I mean, these trains are not being routed around our major cities, there being routed through our major cities.  Defense asks, would you discuss the safety issues of being routed through our major cities ?  Witness responds, the safety issue is that even the federal department of transportation has said in it's published documents that a really important way to reduce risks would be to reroute around major cities.  But then, they propose regulations that don't do that.

Defense asks, and why is that ?  Witness states, because, ah .... well, the railroad industry basically got a law passed in Congress in 2007 and I was very active in that whole controversy, in 2007, the railroad industry had a law passed in Congress that said they don't have to reroute around cities as a matter of course, they can use their own judgement about whether to reroute around cities and they can make all their decisions in complete secrecy.  So, the federal governments whole experts have said again, on the record, in these hearings about the issue of crude oil trains, it is impossible to know whether the railroad industry is valuing safety at all.  It's all secret decisions, by a railroad industry that really has a quite keen interest in moving the stuff ... you know ... quite expeditiously.  So, besides the question about the speed of the trains and the rail cars, there's a question about the volatility of the cargoes and, and , and the basic situation there is that the federal government has punted to some N. Dakota regulators.  That question ( ? ) has been given over to the N. Dakota regulators to decide what should be the volatility standards for shipping the ultra dangerous cargoes around the country.  Defense asks, could you discuss briefly, some of the, I know your not a chemist, some of the issues, of the volatility issues of transporting Bakken crude ?  Witness states, the main thing to say about that is just that Bakken crude is a crude oil and it falls withing a very wide range of crude oils, it has the same placard, 1267, on the rail cars as all of the other crude oils, but crude oil is a very wide term, in ranges from very heavy crude oils, that when it gets in water, it just sinks to the bottom, hard to get out, to very light crude oils and all kinds of ( ? ) issues in between.  And they all get the same placard, 1267, on the rail cars, so the fire service can identify them as flammable cargoes.  They are all highly flammable cargoes.  So, the Bakken crude, has got, is very light, and has got a lot of butane and methane and other kinds of volatile components which means that when you have a puncture of a rail car, those components, .... ah ..... come out first, and, and, form a enormous fireball, you given that close derailments have a lot of ignition points, you know, frictions and punctures and what not, so it's ( ? ) metal over the place, so basically .... um .... that means, we've seen pictures in the American media and the Canadian media of these big fireballs because of the volatility of that and once one car gets on fire, the problem again, with unit trains is that then it tends to set off other cars, you know, if one car is releasing it's content you can get burning oil going under another car and then that creates a thermal tear ( ? ) on the next rail car which which then releases it's contents and sometimes the fireballs go on for a couple of hours and in some places the fires are allowed to burn for 4 days.  I mean, you can get fires and fires and fires.  Defense asks, what are the implications ( ? ) for highly populated areas ?  Witness asks, for which ?  Prosecution objects, calls for speculation.  Defense continues, this is the very matter, that the expert studies, the safety issue that's inherent in the rail transportation of these materials.  Court responds, I have not heard anything that would establish  witness as an expert on how fires effect the communities, so if you want to lay a proper foundation for that opinion-ed testimony then I'll allow it, but not at this point.  Defense answers, we'll come back to that ... um .... would you discuss the frequency of rail accidents in the country.  Witness responds, well .... we've had a lot of, we've had a lot of rail accidents with crude oil by rail and it wasn't just ( ? ), it was a whole ( ? ) of accidents that happened after that, almost one a month.  I mean, in fact, even into 2015 we had seven major accidents in 2015, more damage from those accidents than in previous years, so the accidents are continuing.  Now, the rail industry will say, that in general, their accident rates, in general, over many years, have declined somewhat, but the fact is there's been this uptick in terms of the crude oil cargoes and the damages.  The way the federal government measures impact, is in what they call societal damage and in their federal regulatory documents they use the term societal damage, meaning how much it might cost a community or society if you have some serious accidents.  And, what they predicted was that given what we can tell from what's going on, what they predicted in the federal regulatory documents was that over the next 20 years, we could have as many as 10 derailments per year, over a 20 year period.  And that one of those, could be a derailment that costs a billion dollars.   And then, over the 20 year period, one of the accidents that happened, could be in a major area, a metropolitan area or in a major environmental resource, lets say the Columbia river, and could cost 8 billion dollars.  So, that's just a way of quantifying, .... um .... the, the impact of the releases, if, if, we had the predictions, now what, they qualify this by saying, if we pass very strong regulations we won't have as much severity of accidents in the future.  And., of course, what I would conclude is, in looking at what they actually done, is that they have not significantly reduced the ... um .... the amount of societal damage that can be expected by their own earlier calculations in 2014.  Defense asks, the community ( ? ) was not a big community ?  Defense is quizzed by witness, says something further about ( ? ) ....

[  Note that to this point in the trial, no witness or Defense attorney has bothered to explain further, with clarity, what, in passing testimony has been referred to as " Lac-Mégantic  " .Further, the hyphenated word has been so hurriedly and poorly enunciated as to make it impossible, to this point, to understand what this reference was.  The Lac-Mégantic rail disaster occurred in the town of Lac-Mégantic, in the Eastern Townships of the Canadian province of Quebec, on July 6, 2013, when an unattended 74-car freight train carrying Bakken Formation crude oil rolled down a 1.2% grade from Nantes and derailed downtown, resulting in the fire and explosion of multiple tank cars.  The Transportation Safety Board of Canada (TSB) launched an investigation into the accident. In its August 2014 report, the TSB identified 18 distinct causes and contributing factors, which included leaving the train unattended on a main line, failure to set enough hand brakes, the lack of a backup safety mechanism, poor maintenance on the locomotive and several failures of training and oversight.  ]

Witness responds, Lac-Mégantic, that was a very tiny community, and the thing about Lac-Mégantic was it was just a little resort town on a lake and ... ah ... it was in the middle of the night, this was not a worst case scenario, it was in the middle of the night, there was nobody at work, nobody at school.  There was only one thing open in town and that was a little music cafe because two groups were having birthday parties for their friends.  And so, that group, when the smokers went out to smoke .... um .... ah ..... heard this huge crash and the reason was a whole unit train of crude oil had rolled 12 miles downhill when it's brakes failed on a hill, rolled 12 miles downhill when it got to the little town and a curve it ran off the tracks into the town, into the downtown, train cars, rail cars stacked up, started setting off each other.  When the people went out to smoke, heard the huge crash, they ran up the hill, they reported, and then they had to look back and see all their friends burned up in this huge conflagration.  Now what they described was rivers of fire.  And so, there's been an academic study about that, what could happen in terms of release of one and a half million gallons of crude oil, in a tiny community.  Well, it depends on the slope, cause its going to be a liquid flow of rivers of fire.  That's going to be real important to think about in terms of places in Washington state like Spokane, where you've got elevated tracks coming through the city.  Now, I haven't been to Spokane, but I went to Richmond, Virginia, and the fire chief asked me to come and look at his elevated tracks and he told me that when you see these elevated tracks in Richmond, Virginia, he said my nightmare is a whole unit train of crude oil falling off these tracks into my city and blowing up, cause he's got crude oil coming through his town too, on the way to the Atlantic ocean.

Defense asks, are you aware of fire associations in Washington state that have requested information from BNSF about the safety ..... defense is interrupted.  Witness responds, yes, there's been a lot of concern, I've been in contact with a lot of people in Washington state over the last 3 years, and there's been a lot of concern from your legislators, from your citizen groups, from your media and from your congressional delegation there's been ... ah ... really active on this issue.  The Washington fire chiefs association, the state wide association of fire chiefs wrote a letter to BNSF and said we need to see your hidden risk documents.  We need to see the documents that you have that describe what you know about your risks.  Now, there's 4 types of those, that they asked for specifically, we want to see your worst case accident scenarios,  in other words, tell us what you think could happen, you estimate could happen, with a unit train of crude oil, in a derailment.  Secondly, what is your catastrophic insurance like, how much catastrophic insurance do you carry ?  It turns out, in general, the railroads do not have enough catastrophic insurance and they have testified in Congress, to that fact, they testified that we don't have enough insurance, they said, they use ( ? ) language, when we bring our most dangerous cities we are betting the railroad.  Cause we could have disasters that go far beyond our ability to cover it, we don't have adequate insurance.  Their going to Congress to get, what kind of insurance they can get.  The third document the Washington fire chiefs requested was, the .... um .... was the ... ah .... was the lobby documents, for the .. um ... for the, you know, what kind of lobby decisions have you made in Washington state about, about these ....   And, the fourth set of documents was your emergency response plans, your comprehensive plans.  Fire chiefs are saying, we don't have the most basic kinds of risk documents that we need to assess what kind of ( ? ) and what kind of training and resources we need to have.  And so, the answer from BNSF, came in a letter, and it was a very brief letter, cause it said was, well, we're not planning to send you any ..... i'm paraphrasing .... were not planning to send you any information, but can we talk ?  Witness then stumbles thru a jumble of words, continues with .... what I was told what that means is .....   Prosecution wakes up, objects and multiple voices say, hearsay.  Court sustains the objection, directs Defense to ask another question.

Defense asks, when was this request ?  Witness answers, the request was several months ago, and I chipped in with the Washington fire chiefs last week and they ( ? ) said, we're still being rebuffed by BNSF.  Defense asks, so in your opinion, BNSF doesn't provide the public with the information it needs regarding the dangers of transport ?  Witness answers, well, that's kind of a different question cause the understanding throughout the country is that it's OK for the government to require the railroads to provide information to the public officials and to the emergency response community but it's also Ok for those people not to tell the public at all.  Keep the public in the dark about it, I mean the Obama administration is on record about that ( ? ) and, and, in fact that's the way it's been for many years.  The railroads will sometimes tell fire chiefs a little bit about the hazards provided the fire chiefs sign a written, written agreement that's in the railroads own documents saying, we promise not to give this information to the public.  Defense asks, in your opinion, and experience in dealing with legislative bodies, ah .... does citizen pressure have an effect, ( on recommendation ? )  ?  Witness responds, oh yes, pressure put on legislators and regulators can have really have an important impact.  However, therre's always limitations to that.  I mean, the fact is, that ... um ... the federal railroad administration wants to be the agency that's out there actively trying to make crude oil safe ....  ah .... that's .... ah ... what a lot of people call a captive agency.  And, I can, I'll illustrate that ... in terms of what they have not done in terms of regulating and the best way to do that is look at the national transportation safety board, that's the group that actually is an independent group that investigates accidents, the national transportation safety board.  They've done wonderful work in aviation and other kinds of ... and making airplanes safer.  They investigate these accidents up the wazzu, they really do a great job and then they make recommendations about what ought to get done.  Well, they also have been investigating rail accidents for some time and 20 or 30  years ago, they the FRA ( ? ) we need a new tank car for these flammable cargoes.  And FRA did not move.  20 or 30 years ago they told the federal railroad administration we need to have a collision avoidance technology called positive train technology, positive train control, sorry, positive train control that can prevent collisions.  FRA did not act.  Congress had to come along and demand it, that FRA pass a regulation on it, Congress had to legislate it specifically, that's not what usually Congress does - your supposed to allow your regulatory agency to do the right thing on the recommendation of the accident investigators, but in this case, Congress had, until Congress acted, nothing had happened.

{  For some time now, there has been background conversation noise in the court room.  The court has made no mention of why, nor have Prosecution or Defense concerned the court as to why this is occurring.  ]

Witness continues, so at the end .... one way of making this vivid is, at the end of this big meeting, the NTSB meeting, in April of 2014, the head of the NTSB, who was a very respected safety professional, the chairman was ( ? ), she basically said to the regulators, you folks have a tombstone mentality, until you've got bodies piled up on the ground, your not going to do anything.  And she was so disheartened by the railroad's intransigence at not making crude oil trains safer that the day after her big forum, which was a really important forum in terms of what came out, that the day after the forum, she resigned from public service.  After 20 years of public service.  And so, basically, I'm just trying to suggest that the notion that we have regulatory agencies that are dominated by the industry their supposed to regulate, is not exactly kind of a way out notion.  I mean, miss ( ? ) herself has been fighting for 10 years to get the federal railroad administration to do the right thing, and it's been, it has just been mostly fruitless.  They can get ignored by the regulators.

1:46:02  Defense has no further questions.

Court asks if any other Defense has anything further for the witness.  Defense ( Goldsmith ) shows witness exhibit B, asks, do you see the train in that particular exhibit, at the top of the photo ?   Witness responds, yes.  Defense asks, does that train have oil cars on ( in ? ) it ?  Witness answers, well, it looks like a unit train of rail cars and the only way you can tell of what's it having, is to look at the placards.  Is to be able to see the placards.  But, it certainly could be.  Defense asks, are those cars, oil cars ?  Witness responds, we can't tell this except by looking at the placards.  We can't see the placards in that picture, I think.  Defense asks,  well ... let me ask you this, are the cars behind the engine, do they look like oil type cars ?  Prosecution wakes up, objects as asked and answered.  There is some confusion, and witness states, they look like it.  This defense has nothing further.

Court asks other defense if they have anything further.  Defendant Mazza asks, are you aware of the position taken by the Washington state fire fighters association regarding oil trains ?  Witness answers, you know, I probably have read that at some point, I've read lots of state fire fighters associations so I'm not clearly focused on that.  Mazza asks, in terms of what you are aware of positions being taken by state fire fighters associations on oil trains, what are some examples of positions, they've been taking , beyond what already ..... ?  Witness responds, cutting off question, well, the fire services are very worried about crude oil trains and, in fact, probably the best way of capsulizing this is to say, that had that NTSB meeting, with the top experts from the industry and the government, the fire chiefs that were invited to testify as experts in the national fire cheifs association and from their own experience with crude oil trains, the fire chiefs were unanimous - we cannot handle these kinds of accidents.  We cannot handle in any way a serious accident with a unit train of crude oil.  So, no local community is ready, and that's just been their message, now, the way they, the way they emphasis that is to refer to the federal guidance document on the subject which is called the DOT emergency response guide book.  And .... um .... that's the orange book that fire fighters have in their back pocket because it tells you what the hazards are of all the chemicals and in guide number 128 in the orange book, it says, if just one tank care of crude oil or other flammables in this category, if just one tank car is involved in a fire, the fire service is supposed to move back half a mile and watch it burn.  In other words, don't endanger fire fighters lives in a flammable situation with a, with a flammable tank car.  And so, ah .... that's just one, what we've got is a hundred car trains, where, where, naturally ... I mean, one of the positive things to say is that we have not lost a single fire fighter in all the accidents we've had in the United States.  And that's because they have all backed off, they have not gone and done offensive fire fighting, they have done defensive fire fighting, they all back off and we haven't lost a single one.  And that testifies to how seriously the fire service takes this advice in the DOT emergency handbook.  Mazza asks, what do you mean by defensive fire fighting ?  Witness answers, defensive fire fighting is you evacuate everybody that's close by who might be in danger, but you don't go in and try to offensively fight this fire.  We have a lot of misleading media articles on, I must say, around the country these days, where industry has sponsored some local training session on crude oil trains and they simulate a crude oil train burning and they usually have one or two cars burning .....  Prosecution interrupts, objects as non responsive.  Court over rules, directs witness to finish.  Witness says, and the picture the next day in the newspaper is a picture of fire fighters training a hose, either of water or foam on a burning crude oil tank car fire.  That has never happened.  That has never happened and it will never happen if the fire fighters follow the advice in their own guidebook.  So, that is propaganda that is being put out there by the industry and by the local governments to say, Oh ya, we're getting prepared, we're training our fire fighters.  No fire fighter would ever admit that that is a thing their going to do, go up next to a tank car and pretend to be putting it out.  Mazza asks, so once a, once a, ah ... an oil train fire started, safe to say, it's going to be allowed to burn until it burns itself out ?  Prosecution objects, as leading the witness.  Mazza restates his question.  If a oil train fire happens, what will the fire fighters do ?  Witness answers, well, the fire fighters know what their dealing with, they won't even get close in the first place, they'll just look at it through binoculars and so forth, it there's a fire in a crude oil train.  Or even just one car, in a crude oil train.  If , and, and , and what they will try to do is scope out the situation as the orange book tells them to do, bring out anybody who's in immediate danger if it'snext to a home or residence or business or something but otherwise, um ... yah, they'll let it burn.  Mazza tries to ask another question, Prosecution objects as speculation.  Court asks witness if this question is within the bounds of his expertise.  Witness responds, no, he has never seen anything such as this.  Defendant has nothing further.

1:52:32  Other defense have nothing further.  Court directs Prosecution to cross.

Prosecution has nothing.  Court has witness to step down.  Court asks if defense has any other witnesses for today.  Defense says something about no, and a witness for tomorrow ( Thursday ).  Court announces to the jury that session will be in recess for this day.  Court instructs jury to not discuss the case and other usual precautions.

With jury absent, court announces that it estimates that testimony will be finished tomorrow.  Defense ( unknown ) agrees, unless Prosecution has rebuttal witnesses.  Prosecution does not anticipate rebuttal witnesses.  Court announces that it guesses there will be the argument over jury instructions tomorrow so both sides should come prepared.  Court announces to plan on testimony beginning at 9 AM.

1:54:56  Court is in recess.

End of session for day 3,  ( Wednesday )

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