Rail industry feedback to Final Rulemaking on crude-by-rail train standards is frosty

In the wake of the Final Rulemaking issued by the Department of Transportation’s Federal Railroad Administration and Pipeline and Hazardous Materials Safety Administration (FRA) last week, the feedback by the freight railroad sector has been less than positive. 

The long-awaited Final Rulemaking for “Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains” applies to High-hazard flammable trains,” or a continuous block of 20 or more tank cars loaded with a flammable liquid or 35 or more tank cars loaded with a flammable liquid dispersed through a train.

The concerns said that these actions will address various issues related to these recent accidents, of which there have been 23 that are crude-related going back to 2013, with the majority occurring without the release of any cruel product.
What’s more, these actions come at a time when crude-by-rail volume on trains continues to increase materially, especially in recent years. As previously reported, crude oil being transported out of the Bakken formation, which resides mainly in North Dakota and extends into Montana, Saskatchewan, and Manitoba, produces more than ten percent of total U.S. oil production, according to the United States Energy Information Administration.

Some of the Final Rule’s highlights include:
-requiring any high-hazard flammable unit train (HHFUT) transporting at least one PG I flammable liquid be operated with an ECP (electronically controlled pneumatic)
braking system by January 1, 2021;
-requiring all other HHFUT’s be operated with an ECP braking system by May 1, 2023;
-new tank cars constructed after October 1, 2015 are required to meet DOT Specification 117 design or performance criteria for use in an HHFT;
-restrict all HTTF’s to 50-mph in all areas;
-require HTTF’s that contain any tank cars not meeting the enhanced tank car standards required by this rule operate at a 40-mph speed restriction in high-threat urban areas defined by Transportation Security Administration regulations; and
-document sampling and testing program for all unrefined petroleum-based products such as crude oil, among others

As previously reported, the Association of American Railroads issued a stern response to the rule.

“First and foremost, the DOT has no substantial evidence to support a safety justification for mandating ECP brakes, which will not prevent accidents,” said Edward R. Hamberger, Association of American Railroads president and CEO. “The DOT couldn’t make a safety case for ECP but forged ahead anyhow. This is an imprudent decision made without supporting data or analysis. I have a hard time believing the determination to impose ECP brakes is anything but a rash rush to judgment. DOT has handed down an unprecedented railroad operating requirement that is 100 percent dependent on the actions of rail customers or tank cars owners. This decision not only threatens the operational management of the U.S. rail system, but trains moving 30 mph will compromise network capacity by at least 30 percent.”

He added that the far-reaching effects of this decision will be felt by freight and passenger customers alike in that slow-moving trains will back up the entire rail system.

“Attention and resources should be allocated to addressing the underlying causes of rail accidents and brakes simply aren’t on that list,” he said. “Unjustified regulations such as this trigger a reallocation of investments that will not generate the kind of safety benefits the industry and the public expects. The regulation does not take into account the disruption the ECP mandate will wreak on railroad – both freight and passenger – operations.”

Norfolk Southern CEO Wick Moorman blasted the rules in a Wall Street Journal report, explaining that the rail industry will challenge the rules and that they could make shipping crude oil by rail (CBR) prohibitively expensive.

“At a certain point, the economics are such that you can’t justify shipping the oil,” he said. “The price to get it to refinery is too high and the downside of that is that it will throttle the journey toward energy independence in this country.”

The WSJ report added that while the railroad industry generally agrees that hauling crude oil in older tank cars is not safe, the rules allow shipments in any kind of tank car that is in less than a block of 20 cars or less than 35 cars total.

Norfolk’s Moorman also noted that the new braking requirement, as per the rules is expensive and does not work well, and while the sector is committed to safety, the ECP technology behind the braking is inefficient.

Even though the railroad industry views these rules as onerous, some members of Congress maintain they don’t go far enough.

U.S. Senators Tammy Baldwin (D-WI), Maria Cantwell (D-WA), Chuck Schumer (D-NY), Robert P. Casey, Jr. (D-PA), Richard Durbin (D-IL), Al Franken (D-MN), Patty Murray (D-WA) and Kirsten Gillibrand (D-NY) sent a letter to DOT Secretary Anthony Foxx, calling for stronger disclosure requirements regarding shipments of highly flammable Bakken crude oil from North Dakota.

“The unsafe movement of crude-by-rail is a threat to communities across this country, they wrote. “Therefore, to improve information for first responders and protect the general public, we call upon you to issue an Emergency Order that ensures that SERCs (State Emergency Response Commissions), and by extension first responders, have clear access to detailed, up-to-date information about crude-by-rail shipments and that the public continues to have general information about crude-by-rail volumes and routes that does not compromise security.