In response to recent crude by rail incidents in the United States and Canada, Congress, PHMSA, NTSB, the Federal Railroad Administration (FRA), and even some railroads have proposed improvements in safety standards for trains transporting crude oil. PHMSA originally planned to issue new tank car safety standards and regulations for the phase-out of older tank cars in March, but has since moved that date back to May. Due to that delay and the continued occurrence of rail incidents, Congress and the NTSB have called for PHMSA to establish improved safety standards, some of which exceed the standards in the Agency’s current proposal (discussed below). In response, DOT (through PHMSA and FRA, the agencies charged with regulating rail safety) announced three Safety Advisories and one Emergency Order on April 17, 2015, all intended to address specific issues identified in recent train accidents involving crude oil and ethanol shipper by rail. The Safety Advisories are directed at both shippers and rail carriers, and cover topics such as emergency response information, accident investigations, and mechanical inspection and detection issues. The Emergency Order requires “affected trains,” defined to include those containing at least one DOT-111 tank car and transporting large amounts of Class 3 flammable liquids in a continuous block, to adhere to a maximum operating speed limit of 40 miles per hour through highly populated areas.
The above measures are not as stringent or as extensive, however, as those recommended by the NTSB or proposed by Congress. In early April, the NTSB issued four urgent recommendations to PHMSA to require all new and existing tank cars transporting Class 3 flammable liquids to be equipped with thermal protection and pressure relief devices that meet or exceed standards under 49 CFR Part 179.18(a). In addition, the Board recommended that the Agency require an “aggressive” schedule for the replacement or retrofit of legacy DOT-11 and CPC 1232 tanks cars to include jackets, thermal protection and appropriately sized pressure relief devices, as well as establishing a public reporting mechanism for progress on the retrofit and replacement program. In late March, several Senate Democrats proposed S. 859, the Crude by Rail Safety Act of 2015. Among other things, the bill would require PHMSA to draft new regulations to establish the maximum volatility of crude oil shipped by rail; to require all new tank cars designed to transport Class 3 flammable liquids and constructed after October 1, 2015 to meet certain design standards (including specifications for head shield type, shell thickness, jacket, tank material, braking, top fittings protection, and thermal protection system) set forth in PHMSA August 1, 2014 Notice of Proposed Rulemaking; and to immediately prohibit the shipment of oil or ethanol in DOT-111 tank cars that do not meet CPC-1232 specifications and unjacketed CPC-1232s. The legislation also calls for improvements in oil spill response plans, emergency response, and inspections, among other things.
Meanwhile, some railroads such as Burlington Northern Santa Fe (BNSF) have voluntarily committed to certain improved safety measures. Specifically, BNSF committed to transition DOT-111 cars from shale crude service on its railroad within one year, followed by transitioning unmodified CPC-1232 cars from shale crude service within three years. In addition, BNSF is requiring that speeds be limited to 35 mph for all shale crude trains operated through large municipal areas with populations over 100,000 people and will continue its local emergency responder training program.
In short, while the content of the final PHMSA rules remains unclear, the above recommendations, proposals and operator-imposed measures are almost certain to shape the final rulemaking or subsequent rulemakings, likely by influencing the timeframe for implementation and specific requirements in the new standards.