Freight trains are marshaled Friday at Rigby Yard in South Portland. Derek Davis/Staff Photographer

As cleanup continues from a freight train that derailed Feb. 3 in Ohio, spilling toxic chemicals and forcing locals to evacuate their homes, an exemption in Maine’s public record law prevents residents from learning what hazardous materials are moving through their own communities.

Freight traffic has increased in Maine in recent years as two major railroads have acquired smaller ones. The trend is likely to continue as those companies and state officials have committed tens of millions of dollars to infrastructure upgrades. General industry data shows that freight trains in Maine are mostly transporting pulp and paper, but also commonly move petroleum products and chemicals.

Industry officials say they will provide annual reports about hazardous materials to emergency response agencies upon request. In 2015, just two years after a runaway oil train crashed and killed 47 people in nearby Lac-Mégantic, Quebec, the Maine Legislature decided to shield those reports from public review by exempting them from the state’s Freedom of Access Act.

Railroad representatives say that protection is needed for security reasons.

“Railroads provide thorough information to those who need to know,” Ted Greener, assistant vice president of public affairs for the Association of American Railroads, wrote in an email. “This is no accident. Safety is critical, and arming every American with the precise location and contents of every train would pose monumental safety hazards.”

The change to the public records law took effect after the Maine Legislature overrode a veto by then-Gov. Paul LePage.

“I am not at all comfortable shielding this information from the Maine citizens that may be placed in harm’s way by these transports. If trains are carrying hazardous materials through our state and this information is shared with our first responders and emergency management entities, then this information needs to be available to our citizens,” LePage wrote in his 2015 veto message.

Sigmund Schutz, an attorney who specializes in First Amendment issues and sometimes represents the Portland Press Herald, said the exemption seems to be “an overly broad protection that sweeps away too much information out of the public eye.”

“Recent events in Ohio show why this was a bad idea from day one and ought to be revisited by the Legislature at the first opportunity,” said Schutz.

PROPRIETARY AND CONFIDENTIAL

Maine has more than 1,100 miles of freight railroad used by seven operators, including two of North America’s largest, Class I railroads, which started shipping through the state only recently. In 2020, Canadian Pacific purchased Central Maine and Quebec Railway; last year, CSX Corp. bought Pan Am Railways. Together, they operated nearly 650 miles of track in 2021, according to the Association of American Railroads. In 2019, total freight volume reached 4.5 million tons and 57,000 railcar loads, according to the most recent state rail plan.

The federal government has developed regulations for hazmat shipment by rail, including rules about inspection of those cars, their position in the train and placards to identify the contents. But railroads are not required to report information about their cargoes, including hazardous materials, to any agency in real time. Any data that is shared is considered proprietary and confidential.

“Upon written request, (Association of American Railroads) members will provide bona fide emergency response agencies or planning groups with specific commodity flow information covering all hazardous commodities transported through the community for a 12-month period in rank order,” said Greener.

“The process and associated form reflects the fact that the railroad industry considers this information to be restricted information of a security sensitive nature and that the recipient of the information must agree to release the information only to bona fide emergency response planning and response organizations and not distribute the information publicly in whole or in part without the individual railroad’s express written permission.

“Importantly, commercial requirements change over time, so it is possible that hazardous materials transported tomorrow might not be included in the specific commodity flow information provided upon request, since that information was not available at the time the list was provided.”

Portions of a burning Norfolk Southern freight train that derailed Feb. 3 in East Palestine, Ohio, were still burning the next day. Gene J. Puskar/Associated Press

Greener also said railroads instruct first responders and collaborate with local officials on emergency response plans, and he pointed to the AskRail app that provides data to approved first responders in the event of emergencies, such as the disaster in Ohio.

But it is not clear whether emergency response agencies or other state agencies in Maine request this information or how they use it.

MAINE RESPONSE

Vanessa Corson, spokesperson for the Maine Emergency Management Agency, said the agency receives reports that include information about diesel fuel and batteries for the locomotives, and those details could be part of the response to a train derailment. But Corson did not respond to specific questions about whether MEMA requests information about other hazardous materials.

The Maine Fire Chiefs’ Association did not respond to messages Thursday about the matter.

Spokesperson David Madore said the Maine Department of Environmental Protection tracks and collects fees on oil imports. However, the state does not charge fees for hazardous materials and therefore does not track them in the same way.

“DEP has historically asked RR’s for information about hazardous materials coming into or through the state to try to be proactive, but the RR’s position has been that they are not required to report the information to DEP. It is possible other state and federal agencies collect this data,” Madore wrote in an email.

The law includes a provision that records related to a railroad’s discharge of hazardous materials, posing a threat to public health, safety and welfare, are public. Madore said he could only recall two train derailments in the last decade that required a department response, both involving oil products and neither requiring an evacuation of nearby residents.

A spokesperson for the Federal Railroad Administration reported 20 derailments in Maine between 2017 and November 2022, the most recent data available. Thirteen involved trains that were transporting hazmat, but the reports available Friday afternoon did not provide more detail about that cargo. None caused evacuations or fatalities.

The two Class I railroads that operate in Maine did not provide specific information about what types of hazardous materials are transported through Maine. Both emphasized their compliance with federal regulations and their cooperation with local first responders.

“For security reasons, CSX does not disclose how and where it transports these materials to the public,” company spokesperson Cindy Schild wrote in an email. “CSX complies with Federal law concerning rail security and emergency preparedness, working with Local Emergency Planning Committees (LEPC), county and state Emergency Management agencies to ensure they have a comprehensive list of hazardous commodities transported in their communities so that first responders are prepared in the extremely rare case that a hazmat incident should occur.”

Andy Cummings, a spokesperson for Canadian Pacific, wrote, “We assist first responders in assessing the hazardous materials moving through their communities and the safeguards that are in place to protect against unintentional releases. Additionally, the AskRail app gives first responders immediate information about the type of hazmat a train is carrying, details about that hazmat, emergency railroad contacts and more so they can safely manage a rail incident.”

Chalmers “Chop” Hardenbergh of Freeport retired five years ago from publishing his industry newsletter, Atlantic Northeast Rails & Ports. He said railroads have long been protective of information about hazardous materials on their trains.

“Railroads have been for centuries an empire unto themselves, without feeling much need to let the public know what’s going on,” he said.

Schutz said the lack of even basic information makes it harder for the public to assess whether their communities are adequately prepared for an emergency.

“If we don’t know what’s going on, how can we make an informed judgment about whether what we’re doing now is appropriate?” he asked.