Welcome to Transportation Law Today

Managed by Paul J. Loftus, a partner at Dinsmore & Shohl LLP, Transportation Law Today provides professionals in the rail, transit, inland maritime, and trucking industries with current news and analysis of laws, rulings, and regulatory policies.

Tuesday, September 9, 2014

FRA Publishes Train Securement Rule

The Federal Railroad Administration (FRA) published a proposed rule today covering the securement of unattended train equipment, largely codifying its Emergency Order 28 issued in 2013. Emergency Order 28 was issued in response to the Lac Megantic train disaster in Quebec, where an unsecured train carrying crude oil rolled down grade, derailed, and exploded in the Canadian town. See our prior posts on that topic here and here.

Today's NPRM, and press release, explain the additional requirements for securing and attending crude oil trains, and others carrying poisonous by inhalation materials (PIH). The proposed rule was developed in collaboration with industry via the Rail Safety Advisory Committee. Written comments in response to the NPRM are due November 10, 2014.

Thursday, July 24, 2014

Maryland LNG Export Terminal Clears Another Hurdle

The State of Maryland has granted a key approval for the controversial proposed Liquid Natural Gas (LNG) terminal at Cove Point in Southern Maryland. The action by Maryland's Board of Public Works, which consists of Governor, Martin O'Malley, the state Comptroller, and Treasurer, is another step toward completion of the export terminal. The three member Board actually approved a permit for Virginia-based Dominion to build a pier in the Patuxent river to allow construction materials to be moved by barge for construction of the terminal. Final approval of the project still rests with the FERC.

The Cove Point project is controversial, as noted by the Baltimore Sun in its coverage of yesterday's hearing and approval, which occurred after more than 2 hours of testimony before the Board. The Cove Point project also underscores the unresolved status of hydraulic fracturing in mountainous, and economically challenged, Western Maryland. Maryland has not approved fracking in the state, whereas neighbors Pennsylvania and West Virginia are in the midst of a major energy boom from fracking activity.

Maryland is currently under a moratorium for fracking permits/drilling pending a report expected this fall by an Advisory Commission set up by O'Malley. Maryland's reluctance to permit gas development in Western Maryland, or at least its cautious approach to the process, sets up an interesting situation where natural gas produced in surrounding states may be exported by a terminal in Maryland, even though Maryland has not yet permitted hydraulic drilling within its borders.

Tuesday, July 22, 2014

Foxx and 11 Former DOT Secretaries Call for Long Term Infrastructure Funding

With a short-term fix to the looming expiration of funding for the Highway Trust Fund expected shortly, USDOT Secretary Anthony Foxx, and 11 former USDOT Secretaries, have issued an "open letter" to Congress, urging a long-term solution to transportation infrastructure funding. The open letter is attached here.

Foxx and his predecessors emphasize that the expected short term funding does not "fix" America's transportation system. Noting that the USDOT Secretaries have lead the department for 35 years under 7 presidents, they write: "Suffice it to say we've been around the block. We probably helped pave it." The Secretaries also stated, "So it is with some knowledge and experience that we can write: Never in our nation's history has America's transportation system been on a more unsustainable course."

Other highlights from the open letter:

"This is no way to run a railroad, fill a pothole, or repair a bridge. In fact, the unpredictability of when, or if, funding will come has caused states to delay or cancel projects altogether."

"America needs to break this cycle of governing crisis-to-crisis, only to enact a stopgap measure at the last moment. We need to make a commitment to the American people and the American economy."

"Until recently, Congress understood that, as America grows, so must our investments in transportation. And for more than half a century, they have voted for that principle -- and increased funding -- with broad, bipartisan majorities in both houses. We believe they can, and should, do so again."

Tuesday, July 15, 2014

Foxx, Rockefeller, Manchin & Rahall Call for Infrastructure Funding at W.Va. Transportation Summit

Yesterday I had the opportunity to attend the West Virginia Transportation & Infrastructure Summit, hosted by the Discover the Real West Virginia Foundation, in Charleston. I'm not quite up to "live blogging" but here is a "within 24 hours" post on the event. The DRWV Foundation was created by Sen. Rockefeller in 1988 to promote West Virginia as a viable business environment nationally and internationally.

Speaking at the Transportation Summit were U.S. DOT Secretary Anthony Foxx, West Virginia's U.S. Senators (Rockefeller, Manchin) and Ranking Member of the House Transportation Committee, Nick Rahall. Not surprisingly, all endorsed breaking the political logjam in Washington in the interest of regular funding of transportation infrastructure.

Here are some highlights by speaker:

Secretary Foxx:

Secretary Foxx described transportation infrastructure as a legacy to leave to future generations, asking the question whether we will leave behind a stronger transportation system? He referred to 27 "band aid" funding measures in last 5 years in Congress, preventing states from planning long-term projects and maintenance. Referring specifically to the imperiled Highway Trust Fund, the Secretary warned that unless funding is restored, the Department will implement "cash management measures" by August 1, which likely means most states will receive only a half of their allocated highway funds.

The Secretary, with a nod to the West Virginia audience, reminded everyone, the song does not go "country road, can't take me home," and emphasized the solution as the infrastructure package proposed by the President in the Grow America Act. Here is a link to DOT's summary of the Act.


After receiving awards from W.Va.'s aviation community, Sen. Rockefeller continued his habit of frank comments since his announced his retirement. He lamented he was "profoundly frustrated" and noted "Today we cannot even fund yesterday's needs."


Sen. Manchin encouraged West Virginia to leverage the current energy boom in the state to work cooperatively with its energy producing neighbors, Ohio and Pennsylvania, much like Texas and Oklahoma have.

Regarding the Highway Trust Fund impasse, he regretted that "politics outpaces policy now" and that a stop gap measure is probably the best that can be expected.

On a humorous note, in referring to the cost of reconstruction in Iraq and Afghanistan, he quipped that if we build roads and bridges in W.Va., "we won't blow them up or burn them down."


Rep. Rahall predicted cooler heads will prevail and likely pass a stop gap measure to save the Highway Trust Fund. He stated there was hope for a longer term bill in the lame duck session after the 2014 election, and emphasized the importance of not letting the HTF go bankrupt.

Friday, June 6, 2014

Civil Penalties Against Deepwater Horizon Well Owners Upheld

The U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled Wednesday that BP and Anadarko, the owners of the well involved in the Deepwater Horizon disaster, were liable for civil penalties for release of oil into the Gulf of Mexico under the Clean Water Act. The Court's opinion is attached here.

Despite noting the Clean Water Act was "not a model of clarity" the Court rejected the arguments by the well owners that oil was not discharged from any vessel they owned, and that they were not responsible for the cause of the spill (i.e. the failed blow-out preventer). The Court concluded that well-owner liability is unaffected by the path the oil takes before reaching the water, and that the Act does not permit the shifting of liability for releases of oil to third parties, regardless of the well owner's "knowledge, intent, or fault" in causing a spill. Although the law does permit shared fault as a mitigating factor in assessing a penalty, there is no exception for third party fault for civil penalty liability for a well owner.

Penalty figures, adjusted for inflation, in effect in 2010 when the spill occurred provide for penalties of up to $32,500 per day or $1,100 per barrel. Just estimating the maximum civil penalty for the spill which lasted from April 22 to July 15, 2010 equals an approximate maximum penalty of up to $5.4 billion, if calculated on the barrels of oil spilled.

Thursday, May 8, 2014

USDOT Issues Emergency Crude by Rail Order & Safety Advisory

Yesterday, the USDOT issued an Emergency Order requiring all railroads operating trains carrying Bakken crude oil in the U.S. to notify State Emergency Response Commissions (SERCs) about the operation of the trains through their states. The Emergency Order (Docket No. DOT-OST-2014-0067) requires railroads operating trains carrying Bakker crude containing more than 1,000,000 gallons (approximately 35 rail cars) to notify SERCs of the estimated volumes of Bakken crude, frequency of anticipated traffic, and the route for transport.

Also yesterday, the FRA and PHMSA issued a joint Safety Advisory, "strongly recommending" the use of tank cars with the "highest level of integrity" when transporting Bakken crude. The advisory recommends that older DOT 111 tank cars not be used "to the extent possible." The Safety Advisory does not constitute a ban on the use of older tank cars.

Needless to say, yesterday's actions follow another high profile derailment and fire involving a train carrying crude oil in Lynchburg, VA on April 30th. USDOT's action also follow the recent NTSB crude by rail forum, during which Canadian authorities announced a ban on the use of certain DOT 111 tank cars for hazardous materials in Canada; here is Transport Canada's order. DOT's action on tank cars is not as drastic as the ban by the Canadians, but it appears to be initial steps while more formal rules are being developed.

Tuesday, April 8, 2014

NTSB Releases Agenda for Crude by Rail Safety Forum

As a follow up to my prior post of March 6, 2014, here is the National Transportation Safety Board's (NTSB) agenda for the April 22-23, 2014 Rail Safety Forum on Transportation of Crude Oil and Ethanol by rail.

The public meeting will be held at NTSB's Washington HQ and will also be available via webcast. Speaking at the meeting will be researchers, crude oil and ethanol shippers, tank car builders, rail carriers, emergency responders, and federal regulators. The presentations will cover current and proposed safety initiatives, including attempts to reduce the consequences of accidents involving crude and ethanol via tank car design, operating practices, and emergency preparedness.

Tuesday, March 11, 2014

Supreme Court Rules Abandoned Rail Line Owned by Landowner not Government

Yesterday, the U.S. Supreme court in Marvin Brandt Revocable Trust et al. v. United States (slip opinion attached here), ruled that a Wyoming landowner was the owner of a former railroad right of way which had been formally abandoned.

This case, and the somewhat colorful opinion authored by Chief Justice Roberts, could potentially complicate Rails-to-Trails systems, and the burgeoning cottage industry of land owners seeking compensation from rail trail owners/operators for taking of their land.

The Court's decision yesterday is fairly straightforward: holding that a Wyoming landowner, whom "patented" (i.e. acquired) land from the federal government, subject to certain easements, including a rail road right of way easement, owned the land under the former rail line after it had been abandoned (via a formal process before the Surface Transportation Board).

Citing a 1942 case, Great Northern R. Co. v. United States, 315 U.S. 262 (1942), the Court stated "the government loses ... today, in large part because it won when it argued the opposite before this Court more than 70 years ago." The Government had argued in the Great Northern case, that under a 1875 law, railroads granted land by the government (after 1875) acquired only an easement in the land for railroad purposes. The conclusion then is fairly elementary property law, once the use for which the easement was granted ceased, the easement itself ceased to exist. Justice Roberts, joined by all other justices save Justice Sotomayor whom dissented, rejected the argument that the government retained any implied interest in the land (other than an easement) after the 1875 land.

This decision is also notable because it is an interesting opinion to read, and that is saying a lot when the subject matter is abandoned railroad rights of way and property easements. For example, in recounting the history of the former rail line, Justice Roberts cites to the original rail operator, the Laramie, Hahn's Peak and Pacific Railroad (LHP&P), once touted as the "one of the most important railroad systems in this country," as termed by locals the "Lord Help Push and Pull" or "Late, Hard Pressed, and Panicky." Needless to say, the LHP&P did not have an illustrious history as a railroad.

The key distinction pointed out in this case is how the federal government conveyed land for railroad purposes prior to and after 1875. Much of the land granted before 1875 contained more land ownership interest in the railroads than mere easements, whereas after 1875, most land granted by the government was the use of the land for a railroad, i.e. an easement only, rather than an ownership interest.

This distinction may be significant as more and more cases are brought against rail trail entities by owners of adjacent lands claiming ownership of the rail bed and right of way after the rail use was abandoned.

Thursday, March 6, 2014

NTSB Schedules Crude/Ethanol by Rail Safety Forum for April

It seems as though I may need to rename this blog "Crude by Rail Today," but the news continues to pour in for this hot topic in transportation safety.

Today, the NTSB announced it will hold a two-day public forum at its Washington, DC headquarters on April 22-23, 2014. The forum "Rail Safety: Transportation of Crude Oil and Ethanol" will cover DOT-111 tank car design, construction and crashworthiness, rail operations and risk management strategies, emergency response challenges, and the ever-popular federal oversight.

The Board states a detailed agenda is forthcoming and will be available on the NSTB web site, www.ntsb.gov.

Monday, February 24, 2014

Railroads to Adopt Voluntary Crude By Rail Safety Initiative

A voluntary safety initiative addressing shipment of crude oil by rail has been announced by the USDOT and the Association of American Railroads (AAR). Under the voluntary initiative, major U.S. Railroads will agree to the following steps, outlined in the attached letter from USDOT Secretary, Anthony Foxx:

1. Effective March 25, 2014, one additional internal rail test (i.e. ultrasonic testing) will be conducted each year, and at least two track geometry inspections per year, on track over which crude traffic runs.

2. Route analysis requirements under 49 CFR 171.820(c) will apply to trains transporting 20 or more loaded tank cars carrying petroleum crude oil, which are to be termed "Key Crude Oil Trains."

3. Key Crude Oil Trains with at least one USDOT 111 type tank car, not meeting AAR Circular CPC-1232 requirements, will be restricted to 40 mph, effective July 1, 2014 or before.

4. By July 1, 2014 the participating railroads will have installed wayside defect detectors to detect overheated bearings at intervals of 40 miles, over which Key Crude Oil trains operate.

5. AAR and the railroads will develop an inventory of emergency response resources along the routes over which Key Crude Oil Trains operate.

6. Railroads are to agree to jointly fund $5 million for training emergency responders to rail accidents involving crude oil shipments.

Monday, February 17, 2014

PHMSA Cites 3 Shippers for Misclassified Crude Oil

As part of the on-going "Operation Classification" effort of the USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA), the agency recently announced it had cited three crude oil shippers for allegedly misclassifying crude oil shipped. According to PHMSA's announcement of the Notices of Probable Violation, the agency charges that 11 of 18 samples of crude being loaded onto rail cars were not assigned the proper packing group under the Hazardous Materials Regulations.

The Agency also notes the expansion of the scope of "Operation Classification" to gauge compliance with vapor pressure characterization, corrosiveness, and concentration of entrained gases in materials.

My prior post earlier this year, explains the creation of "Operation Classification" following several accidents involving crude oil shipped by rail.

Tuesday, February 4, 2014

National Freight Advisory Committee to Meet February 6, 2014

The National Freight Advisory Committee will hold its latest meeting on February 6, 2014, from 1:00 p.m. to 5:00 p.m.(EST). A link to the agenda, including the ability to pre-register for Webinar access, is attached here. Web registrants are to complete their registrations by February 5.

The main topic of this meeting is for the NFAC members to prepare a joint comment on the USDOT's designation of the Primary Freight Network. The Primary Freight Network Designation draft has been prepared by the Federal Highway Administration, and the comment period is currently open until February 15, 2014 under docket FHWA-2013-0050,.

Created under MAP-21 (Moving Ahead for Progress in the 21st Century Act), the NFAC advises the USDOT Secretary on implementing MAP-21's call for a national freight network, developing a national freight strategic plan, and other things including legislative recommendations.

Friday, January 3, 2014

PHMSA Issues Safety Alert for Crude Oil Shipment Classification

The USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Safety Alert on January 2, 2014 following recent crude oil fires from train accidents where Bakken crude oil was involved. The Safety Alert is attached here. The Agency states that initial tests from the recent North Dakota accident involving two BSNF trains, and Lac Megantic Quebec in June 2013, indicate Bakken crude "may be more flammable than traditional heavy crude oil."

Yesterday's Safety Alert also encompasses the ongoing "Operation Classification" effort of PHMSA and the FRA, where the agencies have been conducting unannounced field tests to verify proper classification of crude oil shipments. In particular, the Agencies are concentrating on "Packing Group" classifications of shipments; i.e. does the chemical composition of the oil actually in a tank car reflect the packing group classification (and placard) on the car. Packing Groups are the defined classes of hazardous materials under the Hazardous Materials Regulations (HMR), which classify a material's flashpoint and boiling point, among other things.

PHMSA states that as "Operation Classification" is an on-going effort, it will share its sampling results of Bakken crude and oil from other locations. However, PHMSA reminds the offerors of crude oil that they should not delay their own testing (and classification under 49 CFR 173.22) of oil shipped while PHMSA's effort is underway.