Obama's Safer Oil Train Plan Faces Rulemaking Hurdles

It could take more than three years to fully halt the shipment of the most flammable liquids in the most dangerous rail cars.

Mangled rail cars in downtown Lac Megantic, Quebec following the derailment and explosion last year that killed more than 40 people. Credit: Handout photo released by the Transportation Safety Board of Canada

The Obama Administration's proposal Wednesday for making oil-laden railcars safer runs 203 pages and includes a host of new rules for carrying flammable fuels by train—but they come with caveats.

The most important caveat is that they're not final regulations, and it's not uncommon for proposed safety requirements to get weakened and postponed following objections from the industries involved.

What comes next is a 60-day period for accepting comments from the public and the various industries that will be affected by the Department of Transportation's proposed rules. Then the government has to issue the final versions and give the industries time to comply. It could take more than three years to fully halt the shipment of the most flammable liquids in the most dangerous railcars.

The government's "comprehensive rulemaking proposal" also leaves two critical elements unsettled. The DOT offers three different safety standards for making new oil railcars stronger—and asks for public comments on which one should prevail. The agency also offers several variations on rail speed limits, leaving that issue unresolved.

The new rules also would apply only to trains that include 20 or more tankers of highly hazardous liquids, leaving a loophole that worries TRAC, a coalition of Chicago-area communities active in the oil-by-rail issue.

"We need to examine these options closely," said Tom Weisner, the mayor of Aurora, Ill., and co-chair of TRAC. "It's vital that communities across the country weigh in...and demand that the new rules come down on the side of maximum protection for the public."

Concern over the hazards of 100-car oil transport trains has grown steadily since a crude-filled runaway train caused fires and explosions in Lac-Mégantic, Quebec, Canada, killing 47 people and destroying much of the town center. Other fiery wrecks followed in Alabama, North Dakota, Virginia and elsewhere.

Before Wednesday's announcement, regulators had heard from 61 municipal and state government entities, 13 members of Congress, 223 members of the "concerned public," more than 152,000 signers from environmental groups, as well as the National Transportation Safety Board—all of them supporting stricter safety regulations or urging the DOT to take immediate action to improve safety.

Under the rules unveiled Wednesday, all new railcars for transporting oil and ethanol would have to be built to whatever design the government ultimately chooses beginning Oct. 1, 2015.

The industry would be barred from carrying flammable fuels in the most vulnerable existing railcars after Oct. 1, 2017, unless the cars have been retrofitted to comply with the new safety standards, according to the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration, the two DOT agencies in charge of oil-by-rail safety issues.

The proposed rules also would require better braking systems, formal testing programs to verify that mined gases and liquids are properly classified and not overly volatile, the use of standardized criteria for selecting the safest routes for oil trains, and notification to state emergency response commissions about flammable liquids trains passing through their states. 

A host of other issues—including safety standards for railroad bridges, tracks and parked trains—are being addressed in separate DOT rulemakings that aren't finished yet.

Mixed Reaction to Rules

During a press conference to announce the new proposals, Transportation Secretary Anthony Foxx appeared to expect criticism for being slow to act. Safety "is the most important part of our mission," he said. "But...before we set specific standards, we have to consider a variety of factors, and gather feedback from the public, industry and stakeholders." 

Fred Millar, a rail safety consultant, said the proposed rules are "really weak" and will disappoint public officials and community groups that want federal regulators to reduce the risk of dangerous derailments.

"They are pushing for effective and urgent changes," Millar said of the growing public safety campaign. "I don't think people will be happy when they see what they've got here [from the DOT]. They're going to realize that, in so many areas, it's just basically proposing to codify what the industry has already agreed to."

Industry trade groups issued cautious statements in response to the administration's announcement of the rules.

"The fact that the proposed rule incorporates several of the voluntary operating practices we have already implemented demonstrates the railroad industry's ongoing commitment to rail safety," said Edward Hamberger, president of the Association of American Railroads, in a statement.

"The government can and should take steps to ensure greater safety without stalling the energy renaissance that is creating good jobs, growing our economy and improving America's energy security," said American Petroleum Institute President Jack Girard said in an e-mailed statement to reporters.

The surge in North Dakota oil production and the lack of crude pipelines from there to the East and West Coasts led to a wave of 100-car-long oil trains traveling long distances—and to a series of fiery crashes. The volume of oil carried by the nation's main rail lines has jumped 37 fold since 2009, from 10,800 carloads to more than 400,000 carloads in 2013, according to PHMSA.

Overall, the number of accidents on the nation's main railway lines has declined in recent years despite higher freight volume. But accidents involving crude oil have grown from zero in 2010 to five in 2013. In the first half of 2014 there have already been five accidents involving crude oil, according to data included in the proposed rules.

"The growing reliance on trains to transport large volumes of flammable liquids poses a significant risk to life, property and the environment," according to the DOT proposal.

Earlier this month, Sierra Club and ForestEthics petitioned DOT's Foxx seeking an emergency order to immediately prohibit the shipment of North Dakota's Bakken crude and other highly flammable oil in older tank cars.

The groups complained that the DOT's refusal to do so "is inexcusable given the string of findings by the [NTSB] that the legacy...tank cars are extremely vulnerable to puncture, spilling oil, and precipitating explosions and fires in train accidents."

A growing number of companies are already using and investing in a safer version of the legacy tank cars, but the proposed rules won't require those changes until at least October 2017. 

Even though the old railcars are carrying a growing volume of oil and ethanol, "the history is that [rail transport of volatile liquids is] darned safe," said David Hackett, president of Stillwater and Associates, a consulting group that has done work on oil-by-rail issues for governments and oil companies.

"But it should be safer...so it's important that these safety issues get sorted out," he said. "Industry's got to make progress on this—nobody wants bombs going off in their back yard."

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