08 May 2014

Horrific Freight Train Disaster Produces Change in Legislation  

Advisory Notices May Not Satisfy Those at Risk

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US – CANADA – This week the US Department of Transportation (DOT) issued an Emergency Order regarding the transport of crude oil by rail tank car which many residents in the Quebec town of Lac-Mégantic will consider good news, if a little late, after the disaster in July 2013 in which a runaway freight train exploded killing forty seven people in Canada’s fourth worst ever rail accident. The oil involved, Bakken crude, is particularly flammable and there are several factors which both led to that incident and this subsequent legislation.

The core problems with this particular product are both the aforementioned volatility and the fact that the areas where it is extracted lack sufficient refining capability. Improved technologies for the recovery of oil from the Bakken field, which extends under parts of Montana, North Dakota, Saskatchewan and Manitoba, have meant pipeline capacity has been exceeded leading to a glut of carriage by rail car.

According to various investigations the rail carriers have been tempted into using unsuitable and overloaded equipment and, in some cases, misdeclaration of the material giving it a packing code suited to oils with higher flashpoints. Now the stricter Emergency Order makes it mandatory that railroads operating trains containing large amounts of Bakken crude oil to notify State Emergency Response Commissions (SERCs) about the operation of these trains through their states.

Effective immediately, the Emergency Order (Docket Number DOT-OST-2014-0067), requires that each railroad operating trains containing more than 1,000,000 gallons of Bakken crude oil, or approximately 35 tank cars, in a particular state to provide the SERC notification regarding the expected movement of such trains through the counties in that state.

The notification must include estimated volumes of Bakken crude oil being transported, frequencies of anticipated train traffic and the route through which Bakken crude oil will be transported. The Emergency Order also requires the railroads provide contact information for at least one responsible party at the host railroads to the SERCs. The Emergency Order advises railroads to assist the SERCs as necessary to share the information with the appropriate emergency responders in affected communities.

The DOT’s Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Safety Administration (PHMSA) say they have undertaken more than a dozen actions to enhance the safe transport of crude oil over the last ten months. This comprehensive approach includes immediate and long-term steps such as: launching ‘Operation Classification’ in the Bakken region to verify that crude oil is being properly classified; issuing alerts, emergency orders and regulatory updates; conducting special inspections; moving forward with a rulemaking to enhance tank car standards; and reaching an agreement with railroad companies on a series of immediate voluntary actions they can take by reducing speeds, increasing inspections, using new brake technology and investing in first responder training.

The FRA and PHMSA have now also issued a joint Safety Advisory notice (Number 2014-01) to the rail industry ‘strongly recommending’ the use of tank cars with the ‘highest level of integrity’ in their fleet when transporting Bakken crude oil and to avoid ‘where possible’ the use of older legacy DOT Specification 111 or CTC 111 tank cars when shipping the product. Speaking of the new instructions Transportation Secretary Anthony Foxx commented:

“The safety of our nation’s railroad system, and the people who live along rail corridors is of paramount concern. All options are on the table when it comes to improving the safe transportation of crude oil, and today’s actions, the latest in a series that make up an expansive strategy, will ensure that communities are more informed and that companies are using the strongest possible tank cars.”

Whether the new order will satisfy the residents of town such as Lac-Mégantic is another matter. In the aftermath of the terrible disaster last year many will feel that advisory notices are all very well but commercial pressures often mean that regulations enforced by suitable sanctions and even incarceration for transgressors might be more the order of the day.

Photo: The scene at last year's disaster which killed forty seven people in a giant fireball.

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