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May 5, 2015

DOT Issues Final Rule Strengthening Tank Car Standards And Operational Controls For High-Hazard Flammable Trains, and Other Recent Transportation Developments

Bergeson & Campbell, P.C.

DOT Inspector General To Audit PHMSA Progress In Meeting Congressional Mandates: On May 5, 2015, U.S. Department of Transportation (DOT) announced that its Inspector General (IG) has launched an audit of DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) at the request of Representative Peter DeFazio (D-OR), Ranking Member of the House Transportation and Infrastructure Committee. In its announcement of the audit, the IG’s office stated that DeFazio is concerned about how long PHMSA has taken to establish new regulations for railroad tank cars carrying crude oil and to implement mandates from the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. The IG stated that its objective in the audit will be to assess PHMSA’s progress in addressing Congressional mandates and recommendations from the National Transportation Safety Board (NTSB), the Government Accountability Office (GAO), and the IG’s office since 2005. The IG will also evaluate PHMSA’s process for implementing mandates and recommendations and efforts to coordinate and address operating administrations’ safety concerns.

DOT Issues Final Rule Strengthening Tank Car Standards And Operational Controls For High-Hazard Flammable Trains: On May 1, 2015, U.S. Transportation Secretary Anthony Foxx signed the DOT’s long awaited final rule strengthening standards for trains carrying flammable petroleum-based products. Foxx announced the rule with Canadian Minister of Transport Lisa Raitt in a show of solidarity between the U.S. and Canada on the rail transportation of petroleum-based products. The rule was published in the Federal Register on May 8, 2015. 80 Fed. Reg. 26643. It becomes effective on July 7, 2015. The rule applies to “high-hazard flammable trains” (HHFT), which DOT defines as “a continuous block of 20 or more tank cars loaded with a flammable liquid or 35 or more tank cars loaded with a flammable liquid dispersed through a train.” The rule has four main components: enhanced tank car standards and an aggressive retrofitting schedule for older tank cars carrying crude oil and ethanol; a new braking standard for certain trains; new operational protocols for trains transporting large volumes of flammable liquids, such as routing requirements, speed restrictions, and information for local government agencies; and new sampling and testing requirements to improve classification of energy products placed into transport. A summary of retrofit deadlines is below.

Timeline for the Retrofit of Affected Tank Cars for Use in North American HHFTs
Tank Car Type / ServiceUS Retrofit DeadlineTank Car Type / ServiceTC Retrofit Deadline
Non Jacketed DOT-111 tank cars in PG I service(January 1, 2017)
January 1, 2018
Non Jacketed DOT-111 tank cars in Crude Oil serviceMay 1, 2017
Jacketed DOT-111 tank cars in PG IMarch 1, 2018Jacketed DOT-111 tank cars in Crude Oil serviceMarch 1, 2018
Non Jacketed CPC-1232 tank cars in PG I serviceApril 1, 2020Non Jacketed CPC-1232 tank cars in Crude Oil serviceApril 1, 2020
Non Jacketed DOT-111 tank cars in PG II serviceMay 1, 2023Non Jacketed DOT-111 tank cars in Ethanol serviceMay 1, 2023
Jacketed DOT-111 tank cars in PG II serviceMay 1, 2023Jacketed DOT-111 tank cars in Ethanol serviceMay 1, 2023
Non Jacketed CPC-1232 tank cars in PG II serviceJuly 1, 2023Non Jacketed CPC-1232 tank cars in Ethanol serviceJuly 1, 2023
Jacketed CPC-1232 tank cars in PG I and PG II service and all remaining tank cars carrying PG III materials in an HHFT (pressure relief valve and valve handles).May 1, 2025Jacketed CPC-1232 tank cars in in Crude and Ethanol service and all remaining tank cars carrying PG III materials in an HHFT (pressure relief valve and valve handles).May 1, 2025

Lawmakers Introduce Bills To Improve Safety Of Hazmat Rail Transport: On April 28, 2015, Senator Bob Menendez (D-NJ) and Representative Donald Norcross (D-NJ) introduced the Toxics by Rail Accountability and Community Knowledge (TRACK) Act in the Senate and House. The legislation is aimed at improving the transportation of hazardous materials by rail by implementing a series of recommendations made by the NTSB. The TRACK Act would:

  • Enhance penalties for railroads that violate safety standards;
  • Require up-to-date, accurate, and standardized hazardous materials information to better support first responders and emergency management officials;
  • Establish new safety procedures and qualifications to improve moveable bridge crossing safety;
  • Improve risk assessment and decision-making tools for railroads to ensure that safety is always the top priority; and
  • Enhance public education along rail routes that carry hazardous materials to ensure communities are prepared to respond in the event of an emergency.

On April 29, 2015, just a day before DOT issued its final rule on crude oil rail transport, Senators Ron Wyden (D-OR), Chuck Schumer (D-NY), Dianne Feinstein (D-CA), Bob Casey (D-PA), Jeff Merkley (D-OR), Sherrod Brown (D-OH), and Mark Warner (D-VA) introduced the Hazardous Materials Rail Transportation Safety Improvement Act of 2015. The bill establishes a fee on DOT-111 tank cars used to transport crude oil, ethanol, or other flammable liquids. The per-car fee starts at $175 per shipment and increases annually. Funds from the fee would be used to reduce risks to communities by training first responders, hiring state railroad inspectors, and relocating tracks that carry large volumes of flammable liquids or gases. The legislation would also require the implementation of outstanding NTSB recommendations requiring railroads to establish education programs for communities along hazardous materials routes; improve information made available to emergency workers responding to railroad accidents involving hazardous materials, and strengthen track inspection standards. It would require the Energy Information Administration to publish data regarding railroad shipments of flammable energy products, including crude oil, ethanol, and liquefied natural gas. DOT would also be required to conduct a study examining national, regional, and local first responder preparedness for railroad accidents involving large volumes of flammable liquids and to study whether longer freight trains pose greater risks to health and safety.

DOT Agencies Take Coordinated Actions To Increase The Safe Transportation Of Energy Products: On April 17, 2015, DOT announced with its agencies, the Federal Railroad Administration (FRA) and PHMSA, a package of targeted actions that are intended to address some of the issues identified in recent train accidents involving crude oil and ethanol shipped by rail. The actions include one Emergency Order, two Safety Advisories, and notices to industry intended to further enhance the safe shipment of Class 3 flammable liquids. DOT states that preliminary investigation of one recent derailment indicates that a mechanical defect involving a broken tank car wheel may have caused or contributed to the incident. FRA is therefore recommending that only the highest skilled inspectors conduct brake and mechanical inspections of trains transporting large quantities of flammable liquids, and that industry decrease the threshold for wayside detectors that measure wheel impacts, to ensure the wheel integrity of tank cars in those trains. Recent accidents revealed that certain critical information about the train and its cargo needs to be available immediately for use by emergency responders or federal investigators who arrive on scene shortly after an incident. To address the information gap, DOT is taking several actions to remind both the oil industry and the rail industry of their obligation to provide these critical details: PHMSA is issuing a safety advisory reminding carriers and shippers of the specific types of information that they must make immediately available to emergency responders; FRA and PHMSA are issuing a joint safety advisory requesting that specific information also be made readily available to investigators; FRA is sending a request to the Association of American Railroads (AAR) asking the industry to develop a formal process by which this specific information becomes available to both emergency responders and investigators within 90 minutes of initial contact with an investigator; and FRA submitted to the Federal Register a notice proposing to expand the information collected on certain required accident reports, so that information specific to accidents involving trains transporting crude oil is reported. DOT has determined that public safety compels issuance of an Emergency Order (EO) to require that trains transporting large amounts of Class 3 flammable liquid through certain highly populated areas adhere to a maximum authorized operating speed limit of 40 miles per hour in High Threat Urban Areas. Under the EO, an affected train is one that contains: (1) 20 or more loaded tank cars in a continuous block, or 35 or more loaded tank cars, of Class 3 flammable liquid; and (2) at least one DOT Specification 111 (DOT-111) tank car (including those built in accordance with AAR Casualty Prevention Circular 1232 (CPC-1232)) loaded with a Class 3 flammable liquid.