On May 1, 2015, the Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued its much-anticipated final rule adopting requirements focused on the safe transportation of flammable liquids by rail (“Final Rule”). The Final Rule subjects rail cars transporting crude oil and ethanol in high volumes to heightened design standards and an aggressive timeline for compliance. The new regulations have far-reaching and costly implications for the U.S. fuel transportation industry and producers in regions served by rail tank car transport.
Since its issuance of the associated Notice of Proposed Rulemaking (“Proposed Rule”) on July 23, 2014, PHMSA received over 3,200 public comments representing over 182,000 signatories. In response, the Final Rule imposes one of the more demanding specifications for tank car design outlined in the Proposed Rule for new tank car construction, but adopts a retrofit design standard and timeline that better recognizes the considerable economic consequences of compliance. The Final Rule also adopts stringent requirements for enhanced braking systems for certain trains and clarifies a number of other changes proposed in the Proposed Rule.
The Final Rulemaking becomes effective 60 days from publication and is available for review here.
Scope of Rulemaking
The Final Rule applies to high-hazard flammable trains or “HHFTs”. Using a narrower definition than that proposed in the Proposed Rule, the Final Rule defines an “HHFT” as a single train transporting 20 or more tank cars loaded with a Class 3 flammable liquid in a continuous block or 35 or more tank cars loaded with a Class 3 flammable liquid dispersed throughout the train. Class 3 flammable liquids are liquids that have a flash point of not more than 60.5 °C (141 °F), or any material in a liquid phase with a flash point at or above 37.8 °C (100 °F), which includes crude oil and ethanol.
New Tank Cars Used in High-Hazard Flammable Trains
Tank cars constructed after October 1, 2015 that are used to transport Class 3 flammable liquids in HHFTs are required to meet an enhanced design standard, designated as “DOT Specification 117”. Specifically, new tank cars must have:
- a maximum allowable gross rail load of 286,000 pounds;
- a full-height, 1/2-inch thick head shield;
- a 9/16-inch shell thickness;
- a minimum 11-gauge weather-tight jacket constructed from A1011 steel or its equivalent;
- top fittings protection in accordance with AAR specifications for tank cars;
- a thermal protection system in accordance with 49 C.F.R. § 179.18, including a reclosing pressure relief device; and
- bottom outlet handles removed or designed to prevent unintended actuation during a train accident.
The DOT Specification 117 car is a modified version of Tank Car Option #2 from the Proposed Rule, subject to enhanced braking standards discussed below. Unlike the more robust Tank Car Option #1 considered in the Proposed Rule, the adopted DOT Specification 117 standard does not require the TIH top fittings protection system or an electronically controlled pneumatic (“ECP”) braking system.
Existing Tank Cars Used in High-Hazard Flammable Trains
The Final Rule does not require existing tank cars used as a part of an HHFT to meet the same standard as newly constructed tank cars. Unlike new tank cars which must have a 9/16-inch shell thickness, the retrofit cars are required to have a minimum 7/16-inch shell thickness. Retrofit cars may continue to use the steel with which they were constructed and top fittings protection is not required.
Generally, the deadlines for retrofitting tank cars have been extended from those outlined in the Proposed Rule to take into account limited shop capacity to conduct retrofits, though affected parties will likely still consider the timeline tight. In contrast to the retrofit timeline in the Proposed Rule which was based solely on the risk of the material being transported (i.e., the packing group), the Final Rule also considers the risk posed by the type of car subject to retrofit.
The Final Rule establishes the following deadlines for retrofitting cars used in HHFT service:
- January 1, 2018 for Non Jacketed DOT-111 tank cars in Packing Group I service (tank car owners must report progress as of January 1, 2017);
- March 1, 2018 for Jacketed DOT-111 tank cars in Packing Group I service;
- April 1, 2020 for Non-Jacketed CPC-1232 tank cars in Packing Group I service;
- May 1, 2023 for Non-Jacketed DOT-111 tank cars in Packing Group II service;
- May 1, 2023 for Jacketed DOT-111 tank cars in Packing Group II service;
- July 1, 2023 for Non-Jacketed CPC-1232 tank cars in Packing Group II service;
- May 1, 2025 for Jacketed CPC-1232 tank cars in Packing Group I and Packing Group II service and all remaining tank cars carrying Packing Group III materials in an HHFT (pressure relief valve and valve handles).
Operating Speed Restrictions for High-Hazard Flammable Trains
The Final Rule establishes a 50-mph maximum speed restriction for HHFTs, as was proposed in the Proposed Rule. The Final Rule imposes a 40-mph speed limit on HHFTs while traveling in High-Threat Urban Areas (as defined in DOT’s regulations) unless all tank cars containing flammable liquids within the HHFT meet or exceed DOT Specification 117.
PHMSA considered three advanced brake signal propagation systems: two-way-end-of-train (“EOT”) devices, distributed power (“DP”) systems, and ECP braking systems. The Final Rule requires that an HHFT must be equipped and operated with a two-way EOT device or DP system immediately upon effectiveness of the Final Rule.
Further, the Final Rule adopts heightened braking requirements for trains transporting 70 or more loaded tank cars of Class 3 flammable liquids (i.e., “high-hazard flammable unit trains,” or “HHFUTs”), which travel at speeds greater than 30-mph. Specifically, HHFUTs transporting at least one tank car loaded with a Packing Group I material must be operated with an ECP braking system by January 1, 2021. All other HHFUTs must be operated with an ECP braking system by May 1, 2023.
Classification of Products
Under existing regulations, it is the responsibility of the offeror (i.e., any person who sells or makes hazardous materials available or any person who performs any pre-transportation function with relation to hazardous material) to properly “class and describe the hazardous material,” select the most appropriate shipping name, and certify that the material is offered for transportation in accordance with the current requirement. The classification of a hazardous material dictates what other requirements will apply to the shipment of the material, such as operational controls. In the Proposed Rule, PHMSA proposed a sampling and testing program for mined gases and liquids, including crude oil, to ensure the proper characterization and classification of these materials. The Final Rule limits the sampling and testing program “to unrefined petroleum-based products.” The Final Rule requires that the offeror certify that the program is in place, document the testing and sampling program outcomes, and make information available to DOT personnel upon request. In addition, the Final Rule clarifies that the sampling and testing program must “identify properties relevant to the selection of packaging through testing or other appropriate means.”
Rail carriers transporting HHFTs are required to conduct an annual route analysis considering, at a minimum, 27 risk factors (e.g., population density along the route, proximity to iconic targets, trip length for route) prior to route selection. Rail carriers transporting an HHFT are required to provide a point of contact for routing issues to existing state and/or regional fusion centers (which coordinate with state, local and tribal officials on security issues), and to state, local, and tribal officials in jurisdictions potentially affected by routing decisions who contact the railroad regarding such decisions.
The Final Rule does not adopt the requirement in the Proposed Rule for reporting Bakken Crude oil movement to State Emergency Response Commissions (“SERC”).