Wednesday, September 17, 2014

S 2784 Introduced – Rail Safety

As I noted last week Sen. Blumenthal (D,CT) introduced S 2784, the Rail Safety Improvement Act of 2014. The bill would provide authorization for funding various DOT rail safety programs under 49 USC 20117 and adds some new safety requirements; including specific requirements for highly hazardous flammable trains (HHFT).

HHFT Rulemakings

In many ways Section 6 of this bill is a specific authorization for the current HHFT,  HHFT emergency response and train securement rulemakings that are being undertaken by the Pipeline and Hazardous Material Safety Administration (PHMSA) and the Federal Railroad Administration (FRA). There are some significant differences that could affect those rulemaking processes.

One significant affect could be on the timing of those rules. This bill would provide a very short time requirement (180 days for the emergency response {§6(e)(1)} and train securement {§13}) rulemakings and  for DOT to put these rules into place. There is no specific requirement for a deadline on the HHFT regulation process, but the HHFT requirements would become law upon this bill being signed by the President.

DOT could, of course, ignore these time limits as they have done for so many other congressional requirements or they could short-cut the publication and comment provisions of the rulemaking process and institute the provisions as a directed rulemaking. That response would almost certainly be challenged in court.

HHFT Requirements
This bill has some differences from the current PHMSA proposed rule. First it would codify the requirements in 49 USC 5111. It would expand the route notification requirements to include county officials {§5111(b)(1)}, require submission of copies of those notifications to DOT{§5111(b)(2)}, and specifically place those submissions to DOT under the public disclosure requirements of the Freedom of Information Act (5 USC 552). Interestingly, the DOT notification requirements do not apply to the requirement to provide route update information to State and County emergency response officials. It also provides for civil fines of up to $175,000 per day for failure to comply with these requirements {5111(b)(5)},

PTC for Crude Trains

Section 6(d) would amend 49 USC 20157(a)(1) by adding the requirement that any mainline over which “20 or more tank cars loaded with petroleum crude oil” are transported would have to be covered by a positive train control system (PTC). There is no provision changing the time by which that PTC system for these lines would have to be operational so presumably the December 21st, 2015 deadline would still apply. The wording does not seem to require that the 20 cars be in a single train so that further complicates the interpretation of this provision.

Moving Forward

This bill was introduced way too late in this session to be actually considered and passed. While there is a certain amount of political pressure on this issue, I do not believe that it is enough to overcome the political inertia of an election season and a busy lame duck session. This bill or another version of it will almost certainly be re-introduced in the next session.

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