Secretary Foxx and PHMSA Release Much-Anticipated Proposed Rule On Crude By Rail Tank Car Standards

by Nossaman LLP
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The U.S. Department of Transportation Secretary Anthony Foxx and the Pipeline and Hazardous Materials Safety Administration (PHMSA) recently released a much-anticipated Notice of Proposed Rulemaking (NPRM) to improve the safe rail transportation of flammable liquids, including petroleum crude oil and ethanol. 

PHMSA also released a companion Advanced Notice of Proposed Rulemaking (ANPRM) on oil spill response plans, seeking comments on current thresholds and their applicability to rail and a summary of a study finding that crude oil from the Bakken field presents greater danger during transport than other types of crude.

There is much to digest in the three documents. Here is a summary of the key elements of the proposed rule.

The Proposed Rule

The proposed rule is based on an advanced notice of proposed rule making published by PHMSA last September and reflects feedback from more than 152,000 commenters.

Generally - The proposed rule includes options for enhanced tank car standards, a phase-out or retrofit of tank cars not meeting the enhanced standards, an expanded classification and testing program for petroleum crude oil and ethanol (and other mined gases and liquids) and new speed restrictions and braking requirements for trains hauling 20 or more carloads of such flammable liquids (which would be defined as a high-hazard flammable train or “HHFT”).

New Tank Car Standard – The proposed rule contains new standards for tank cars constructed after October 1, 2015 that would be used to transport flammable liquids as part of an HHFT.  A number of variations are outlined in the proposed rule, all of which address thermal, top fittings, and bottom outlet protection, and tank head and shell puncture resistance.  The proposed rule would require an HHFT to be quipped with either electronic controlled pneumatic brakes, a two-way end of train device, or distributed power braking, depending in part on tank car standard adopted.

Sunset of DOT-111s – The proposed rule would phase out the use of DOT-111s, the oldest tank cars in use, over 2 years, unless they are retrofitted to the new tank car standard.

Other Current Tank Cars  – The proposed rule would require other existing tank cars used to transport flammable liquids as part of an HHFT be retrofitted to meet the new tank car standard or operated under speed restrictions for up to five years, depending on the flammable liquids transported.

Speed Restrictions – During the time when use is still permitted, flammable liquids moving in an HHFT not meeting the enhanced tank car standard (which means all HHFTs presently) would be subject to a 40-mph speed restriction, although the proposed rule outlines three different options with respect to the geographic scope of this limit. Tank cars meeting the enhanced specifications (once finalized) would be limited to 50-mph in all areas.

Testing & Sampling Procedures; Routing Analysis; SERC Notification - The rule would expand existing flammable liquid sampling and testing procedures, including changes in test frequency, expansion of sampling points in the supply chain and more comprehensive certification.  It would codify the Rail Corridor Risk Management System as an aid in the determination of the safest and most secure routing for HHFTs. The proposed rule also would codify DOT’s May 2014 Emergency Order, which requires trains containing one million gallons of Bakken crude oil to notify State Emergency Response Commissions (SERCs) or other appropriate state delegated entities about the operation of these trains through their States.

What’s Ahead

Both the NPRM and new spill response planning ANPRM will be open for 60 days of public comment and PHMSA has indicated that does not intend to extend the comment period.

Secretary Foxx said “While we have made unprecedented progress through voluntary agreements and emergency orders, today’s proposal represents our most significant progress yet in developing and enforcing new rules to ensure that all flammable liquids, including Bakken crude and ethanol, are transported safely.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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