New FRA-PHMSA Order and Advisory for Bakken Crude

A DOT press release today reports that the Federal Railroad Administration has published a new Emergency Order (Docket Number DOT-OST-2014-0067) setting emergency response notification requirements for railroads hauling crude oil trains consisting of 35 or more railcars (or 1,000,000 gal) of Bakken crude oil. Additionally FRA and the Pipeline and Hazardous Material Safety Administration issued a joint safety advisory (SA #: 2014-01) for railroads transporting Bakken crude oil.

Emergency Order

While the PR reports that the FRA “has issued” the Emergency Order it is not found on the DOT or FRA web site. The docket number listed in the PR looks like one of the docket numbers used on the Federal eRulemaking Portal (www.Regulations.gov), as of 20:30 CDT there is nothing listed for the docket number. Nor is there a listing that the Emergency Order is scheduled to be printed in tomorrow’s Federal Register, a pre-requisite for effective Emergency Order.

According to the PR the Emergency Order will require railroads operating crude oil trains carrying Bakken crude oil to provide each “SERC [State Emergency Response Commissions] notification regarding the expected movement of such trains through the counties in that state”. The Emergency Order lists the following information as being required in those notifications:

• Estimated volumes of Bakken crude oil being transported;

• Frequencies of anticipated train traffic:

• Route through which Bakken crude oil will be transported; and

• Contact information for at least one responsible party at the host railroads.

Since I haven’t seen the actual Emergency Order yet, I can’t tell for sure, but it looks like the Emergency Order does not require providing schedules for the movement of such unit trains. Many local government officials and emergency planners have been asking for this type of information for years on hazardous material shipments.

It is also not clear if the Emergency Order provides any information sharing protections to providers of this information. The standard Federal Rules do not apparently apply as the information disclosure is being made to a State not Federal agency. This information protection issue has always been the railroad’s strongest argument against the mandate of information disclosure.

Safety Advisory

While the Emergency Order is not currently available, the Joint Safety Advisory has been published on the FRA web site. The SA ‘advises’ and ‘encourages’ railroads and crude offerors to “select and use the railroad tank car designs with the highest level of integrity reasonably available [emphasis added] within their fleet” for shipment of Bakken Crude. It also recommends against the use of “older, legacy DOT Specificaiton 111 or CTC 111 tank cars” for that material.

FRA and PHMSA are paying the price for their inaction on the long known DOT 111 tank car problem. These cars are a major portion of the current rail tank car fleet and would normally be expected to remain in full service for a number of years. If FRA and/or PHMSA were to try to immediately eliminate the use of these cars for crude oil shipments a major reduction in the number of cars available for crude oil shipments; a reduction that would severely curtail those shipments. Economically this would be a non-starter.

Moving Forward

Given the publication schedule for the Federal Register, it is possible that the Emergency Order may be published Friday, but it is more likely to appear in the Monday FR.

FRA Announces Potential RSAC Actions

Yesterday a press release from the Federal Railroad Administration (FRA) announced the results from the Railroad Safety Advisory Committee’s emergency meeting to discuss potential regulatory actions that the FRA might consider in light of the Canadian oil train derailment earlier this summer.

During the meeting the RSAC agreed to address four areas:

• The appropriate train crew size;

• The requirements for the securement of trains;

• The operational testing for employees to ensure appropriate processes and procedures for securing trains are followed; and

• The hazardous materials issues relating to the identification, classification, operational control and handling of such shipments in transportation. 

Since part of the RSAC mandates is to examine safety issues and identify “cost effective solutions based on the agreed-upon facts; and identify regulatory options where necessary to implement those solutions”, it is very possible that regulatory actions might result from this process.

But don’t expect quick action. The RSAC operates on a consensus building process and then its recommendations for legislative action must be referred to FRA and DOT for subsequent action. And then, of course, the whole public publish, response and review process still has to unfold. The first step, the RSAC recommendations, is supposed to be filed with the FRA by April of next year.