In response to recent crude oil train derailments in the U.S. and Canada, PHMSA has proposed two rulemakings intended to prevent and mitigate the consequences of crude by rail incidents.  In consultation with the Federal Railroad Administration, on August 1, 2014, PHMSA issued a notice of proposed rulemaking that addresses three primary topics:  (1) operational controls for certain “high hazard flammable trains,” (2) improved classification and testing program for mined gases and liquids, and (3) enhanced tank car standards.  In conjunction with the rail safety proposed rule, PHMSA also issued an advanced notice of proposed rulemaking regarding oil spill response plans requirements for high hazard flammable trains.

Proposed Crude Rail Safety Rule

As proposed, the new concept of “high hazard flammable trains” (HHFTs) would apply to trains with twenty or more cars carrying Class 3 flammable liquids, such as crude oil and ethanol.  HHFTs would be subject to additional operational requirements such as rail routing risk assessments, speed restrictions (50 mph for all HHFTs), and enhanced braking controls.  The proposal requests comment on several options for 40 mph speed restrictions on trains with at least one tank car that does not meet the new tank car standards (set forth below).  Further, all trains containing one million gallons or more of Bakken crude would be required to notify State Emergency Response Commissions (SERCS) about crude transportation in those states.  In addition, the rule also proposes an improved classification and testing program for all mined gases and liquids, including the requirement that all shippers maintain a written sampling and testing program.

Finally, the rule proposes enhanced standards for both new and existing tank cars used to transport flammable liquids as part of a HHFT.  New tank cars constructed after October 1, 2015 (that are used to transport flammable liquids as part of a HHFT) must meet enhanced safety specifications such as thicker steel shielding, improved thermal protection, and crash-resistant valves (referred to as DOT Specification 117).  Existing tank car models (DOT Specification 111) that are used to transport flammable liquids as part of a HFFT must be retrofitted to meet safety criteria for DOT Specification 117 (except for top fittings protection).  While the deadlines vary, existing tank cars in HHFT service in the Packing Group applicable to most Bakken crude must be retrofitted by October 1, 2017.  Models that cannot be retrofitted with these features must be retired or used for less hazardous materials.

Oil Spill Response Plan Proposal

In a separate notice, PHMSA proposed to expand the applicability of comprehensive oil spill response plan (OSRP) requirements to HHFTs based on thresholds of crude oil that apply to an entire “train consist” (which PHMSA defines as “the rolling stock, exclusive of the locomotive, making up a train”).  Currently most if not all trains that transport oil must prepare a basic OSPR, but very few have to prepare more detailed comprehensive OSPRs.  PHMSA is considering the following thresholds that would trigger the requirement to prepare a comprehensive OSPR:  1,000,000 gallons or more of crude oil per train consist; an HHFT of 20 or more cars of crude oil per train consist; or 42,000 gallons of crude oil per train consist.  In addition, the notice requests comments on additional thresholds as well the current requirements for comprehensive OSRPs as applied to trains carrying large volumes of crude and whether these plans should be provided to local emergency responders.

Related to these rulemakings, PHMSA released an Operation Safe Delivery update which concludes that Bakken crude oil tends to be more volatile and flammable than other crude oils in the U.S. (based on an analysis of Bakken crude data gathered between August 2013 and May 2014, during its “Operation Classification” initiative).  PHMSA further contends that the safety risk is magnified by the increasing volume and long distances over which crude is shipped through the U.S.  API and other industry groups have since disagreed with PHMSA’s conclusion, calling the science and data into question.

In short, the above rulemakings propose a range of measures to improve oil train safety, some of which have already been voluntarily adopted by operators (e.g., notifying state emergency responders about train traffic, reducing speed limits and route selection).  In particular, PHMSA requests comments on several options related to speed restrictions and new tank car specifications.  Comments are due sixty (60) days from the date of publication in the Federal Register (August 1, 2014).  PHMSA has already indicated that it does not plan on granting an extension to the comment periods and expects to issue final rules by early 2015.