Under a new Emergency Order issued May 7th, 2014 by the Federal Railroad Administration, unit crude oil trains from North Dakota, like this one being pulled by the Norfolk Southern Monongahela Heritage Unit on the BNSF Railway through Highlands, Illinois, will require their movement to have been reported to state emergency response agencies prior to the journey.

At approximately 1:15 AM EST on July 6^th, 2013, a unit freight train of the cross-border operating Montreal, Maine, & Atlantic Railroad (MM&A) loaded with crude oil from the Bakken Shale Formations in North Dakota in the western United States derailed and multiple cars loaded with crude oil ruptured, caught fire, and exploded in the heart of the community of Lac Megantic, Quebec. The resultant massive fires and sustained release of hazardous chemicals combined to kill or leave missing almost fifty Canadian citizens of the town, injure countless others, and destroy or contaminate much of the city center and nearby lake.

The reverberations of this accident and several similar though thankfully much less deadly accidents since have combined to send shock waves through an industry that to that point had seen only an accelerating need for and use of such trains. Since then, however, both the Canadian and United States governments have imposed significant new rules to modify both the state of the equipment used in such movements as well as the operational procedures which they are to be conducted with. A variety of new regulatory actions addressing such topics as proper equipment securement, product classification, crew manning levels, tank car construction standards, and incident response planning have all been dealt with, and yesterday, May 7^th, 2014, the Federal Railroad Administration took further action which will impose a significant new reporting burden on rail carriers transporting crude oil.

In Emergency Order DOT-OST-2014-0067, the FRA is requiring that railroads operating trains which are carrying one million gallons or more of Bakken crude oil to or through any particular state to provide that state’s emergency response commission with information regarding:

• The expected movement of such trains through the affected counties of that state
• The notice must include the estimated volume of the oil being transported
• It must include the expected frequency of the traffic transporting it
• It must specify the route over which the Bakken crude oil will be transported.

One million gallons is approximately equal to the contents of thirty-five standard size railroad tank cars; crude oil unit trains typically consist of more than a hundred such cars.

By its nature this order will impose significant operating restrictions on and also reduce the flexibility of railroad traffic planners. It will restrict the ability of the railroad to reroute traffic quickly in the event of a derailment or other incident which may disrupt traffic over the normal routing. It will certainly cause delay in shipments of crude oil, at least initially. It will impose reporting requirements on the railroad to the government, the consequences of which failing to comply with are at present unclear—what happens if some county or other claims not to have gotten the word, or files a suit to stop the movement, claiming that they lack the resources to deal with a potential incident? That would be uncharted legal territory, and while the major railroads, as federally chartered common carriers, would almost certainly win any such case in due time, what happens meanwhile? It is also of no small interest that the order applies only to crude sourced in the Bakken formation; crude oil sourced elsewhere is seemingly excluded, at least at present. Once can imagine a scenario in which this could cause no small amount of confusion as the involved parties, many of whom might be several levels of separation away from the offeror, attempt to decide if the oil in any given loadout qualifies under this order or not. Your author questions the efficacy of this order in increasing safety in any practical way. In practical terms it is likely that it will do little more than create a paper trail that will lend itself to confusion, and which may be used, or misused, to enflame the passions of local communities against rail transport, which despite the recent spate of incidents remains statistically drastically safer than transport by highway, which is at present the only other practical alternative to rail—assuming you could find enough trucks and drivers. However, the order has been issued, and now offerors and transporters will be required to live up to its strictures.

In simultaneous action again referencing tank car construction, under FRA Safety Advisory 2014-01, PHMSA Docket No. PHMSA-2014-0049; Notice No. 14-07, the federal government urges “those shipping or offering Bakken crude oil to use tank car designs with the highest level of integrity available in their fleets.. IN addition, PHMSA and FRA advise offerors and carriers to the extent possible to avoid the use of older legacy DOT Specification 111 or CTC 111 tank cars for the shipment of Bakken crude oil.” DOT 111 cars were involved in the disaster in Lac Megantic and have featured in several incidents since. Removing from service DOT 111 cars that have not been retrofitted to increase their survivability without rupture in the event of an accident is the focus of current efforts to improve the safety the rolling stock found in crude oil unit trains.

While many of these provisions are seemingly common-sense, and indeed are already part of the operating procedure at many railroads in one form or another, several of the requirements may lead to increased costs and/or operating complications as railroads struggle to comply with the staffing and control requirements imposed. However, at present the government is in a circumstance under which it apparently feels compelled to “do something.” That does not often lend itself to good policy.

Here is link to the relevant press release about both the Safety Advisory and the Emergency Order:

http://www.fra.dot.gov/eLib/Details/L05223

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