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.

2013 Year in Review from Transportation Law Today

2013 will likely be remembered for several significant transportation events, including the Lac Megantic and Metro North rail accidents. As I write today on New Year's Eve an active fire from a train crash and derailment involving crude oil is taking place in Casselton, North Dakota (here is the NTSB's initial press release). The event in South Dakota highlights other major trends from 2013: positive train control and the carriage of crude oil by rail. Finally, a review of 2013 would not be complete without a mention of the regulatory and political environment, significantly because some-what bi-partisan WRRDA bill (which many had great hopes of passage in 2013), will wait until 2014.

MAJOR RAIL ACCIDENTS

The June 2013 accident which destroyed a significant portion of the town of Lac Megantic, Quebec, and claimed over 40 lives, spurred quick action by Canada's rail regulator, and reciprocal action by the FRA. My prior posts explained some of those actions here, and here.

Following Lac Megantic efforts were made to address the classification of crude oil carried by rail, which may again gain more attention given the on-going situation in North Dakota. Crew size was another issue in Lac Megantic, which the regulators also addressed in the context of securing haz mat trains.

The December 1 Metro-North accident in New York city also raised crew size questions, as well as positive train control implementation. See my prior post here.

Although neither the Lac Megantic nor Metro-North accidents have had their investigations concluded, information released indicates likely causes: failure to secure the train on a grade (Lac Megantic), and crew error in Metro-North. Coming in 2014 will be the Rail Safety Advisory Committee recommendations following Lac Megantic, and possibly, action on the Commuter Rail Passenger Safety Act proposed shortly after the Metro-North accident.

POSITIVE TRAIN CONTROL

The state of Positive Train Control, and the current 2015 deadline for implementation, will continue to be a hot topic in the coming year. Even though the GAO acknowledged that many railroads could not meet the 2015 deadline, it seems unlikely any wholesale moving of the deadline will occur given recent high profile train accidents. My best prediction is that some case by case relief for portions of PTC systems or tracks may be granted in an effort to get operational as much as possible by 2015.

CRUDE BY RAIL

I expect growing regulatory and public attention to crude by rail shipments, again highlighted by what is currently happening in North Dakota. Crude by Rail, as with Haz Mat by rail, is clearly a safe mode of transport given the huge volumes moved without incident. However, when accidents occur they tend to be memorable given the product being moved. On-going efforts from the RSAC on operational issues, as well as a renewed focus on tank car safety standards will certainly continue.

WRRDA I HARDLY KNEW YA

Now to the blue and brown water worlds... the continuing fate of the now-termed WRRDA bill and its path through a divided congress will continue into 2014. The bill's remedy for the monumentally over-budget Olmstead Lock and Dam project, aka the "Kentucky Kickback" seems to have survived some initial hype when the deal emerged as part of the government shut-down end. Both houses of Congress have appointed conferees to iron out differences between the Senate bill passed in May 2013, and the later house bill.

Is WRRDA an example of a deeply divided congress prioritizing infrastructure investment? Perhaps, but it also may be low hanging fruit in the sense that WRRDA is what could be accomplished in a bi-partisan way with relatively little controversy. In any event, the bill has yet to be passed by congress, which is likely to happen in early 2014.


Thanks to our readers and best wishes to all for safe and joyful New Year in 2014.

- Paul J. Loftus, December 31, 2013

FRA Follows Suit with Emergency Order on Haz Mat Train Operations

Following the emergency rules issued by Transport Canada ( see my 7/30/13 post here ) the FRA issued an Emergency Order on Friday with similar requirements.

The FRA Emergency Order and Safety Advisory calling for as yet to be scheduled Rail Safety Advisory Committee meeting, are effective immediately and are in direct response to the Lac Megantic disaster in Quebec. Though the FRA Order notes that neither Transport Canada nor the Canadian Transportation Safety Board has determined a cause of the Lac Megantic derailment, the FRA Order clearly focuses on the securement of unattended trains. The FRA Order prohibits haz mat trains from being left unattended outside of yards or terminals unless authorized, and requires communication between train crews and dispatchers about how trains are secured (including tonnage and number of hand brakes applied) if a train is left unattended.

The FRA Order also requires railroads to have qualified employees inspect rail equipment which emergency responders have been on before leaving a train unattended, which is a nod toward the theory that actions of firefighters had some role in the Lac Megantic breakaway train. Prior to the train rolling away, a fire in a locomotive had been extinguished by local authorities.

Unlike the Canadian emergency rule, the FRA Order does not immediately mandate minimum 2 man crews on haz mat trains, rather, the Safety Advisory notes that crew size will be a task discussed at the forthcoming meeting of the RSAC.

Transport Canada Prohibits One-Person Crews on Haz Mat Trains

In response to the derailment and subsequent disaster in Lac Megantic, Quebec, Canada's Transportation regulatory agency, Transport Canada, has issued 6 Emergency Directives. Among the new emergency rules are requirements that all unattended controlling locomotives on main tracks and sidings have their cabs protected from unauthorized access, and that railroads ensure handbrake rules under the Canadian Rail Operating Rules are complied with when a locomotive attached to one or more cars is left unattended for more than an hour. The Directive also prohibits locomotives coupled to cars carrying "dangerous goods" (i.e. Canada's term for hazardous materials) from being left unattended on a main track. Regarding crew size, every locomotive coupled to one or more haz mat cars transporting dangerous goods, must be operated by no fewer than two qualified crew members. Here is a link to the Canadian Transportation Safety Board's "active investigation" page about the incident.