Commentary

AAR considers court action to alter CBR rulemaking

Written by David Thomas, Canadian Contributing Editor

Reaffirmation by the U.S. rail and hazardous materials regulators of new rules for the movement of flammable liquids means operational migraines for railroaders, without actually addressing the underlying cause of crude oil exploding in transit.

The regulation package was published as a “final rule” last May jointly by the Federal Railroad Administration (FRA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA).

The Association of American Railroads (AAR), which wanted even tougher standards for tank cars, said Nov. 10 , 2015 it is considering escalating its failed administrative appeal to the courts.

“The Association of American Railroads is disappointed that PHMSA has denied the railroad industry’s appeal to strengthen the agency’s recently enacted flammable liquids tank car rule,” said spokesman Ed Greenberg. “PHMSA rejected the freight rail industry petition to require tank cars moving flammable liquids to be equipped with thermal blankets designed to afford more time before the flammable liquid in a tank car ignites. PHMSA also chose to deny the AAR’s request that older tank cars needing retrofits be equipped with top-fittings protection to prevent valves from shearing off in an accident.”

“AAR had also urged that all flammable liquid tank cars, as opposed to just trains moving 20 or more such tank cars, be equipped with safety features announced in the new rule. This would, AAR maintained, close a loophole that currently allows shippers to use older DOT-111 tank cars without these safety features.”

When asked specifically whether the rail lobby would escalate its objections to the federal courts, Greenberg answered: “The AAR is still reviewing the decision’s specifics and considering its options.”

The FRA also rebuffed the AAR’s objections to mandatory adoption of electronic braking for hazmat unit trains.

In its denial of five separate appeals published Nov. 9, 2015, the department of transportation’s hazmat and rail regulation units implicitly conceded that the CBR rules will not eliminate or even limit the explosiveness of highly volatile oil such as that fracked from the mid-continent Bakken shale formation or the intentionally juiced bitumen mined from Alberta’s northern tar sands.

The sibling regulators said the rule package was “designed to reduce the consequences and, in some instances, reduce the probability of, accidents involving trains transporting large quantities of flammable liquids.”

PHMSA had the regulatory power, but not the political will, to require Bakken oil shippers to treat crude at the wellhead (as is routine in Texas’ Eagle Ford oilfield where explosive gases are removed through simple heat treatment). Similarly PHMSA could have banned the injection of ultra explosive naptha and hydrogen into tar sands bitumen.

Instead, PHMSA gave into anti-rail rhetoric by the American Petroleum Institute and chose to focus all of its regulatory might on trains and tank cars, and not the underlying matter of unnecessarily dangerous cargo. That, the one factor that could actually prevent oil train explosions, was punted to the energy department for two more years of equally unnecessary study.

To be fair, the timid scope of CBR rulemaking was the work of former FRA and PHMSA administrators and not the agencies’ current and ballsier administrators, Sarah Feinberg for the FRA and PHMSA’s Marie Therese Dominguez. It was President Obama and his Transportation Secretary Anthony Foxx who chose to leave the critical issue of cargo volatility to North Dakota’s apologetically pro-oil regulators who adopted the modest requirement that crude be “conditioned” by boiling off hydrogen sulfide and water, but not its explosive gases.

The coordinated protection of oil interests by politically controlled regulators in both the U.S. and Canada means railroads alone carry the legal and moral liabilities of moving untreated or (in the case of bitumen) intentionally doped crude along densely populated cross-continental corridors.

In practical terms, this means yard operators must take account of individual tank car vintages when making up trains hauling Class III flammable liquids (such as crude oil): No more than 35 DOT-111 vintage tank cars (including unjacketed CPC-1232s) can be included in a train (and not more than 20 in a block) without that train being managed as “high hazard flammable train” (HHFT) with the consequent speed and routing restrictions.

The regulators bluntly dismissed the AAR’s contention that it is impossible for shippers or carriers to predict whether a particular car may be included in a train meeting the HHFT definition: “To argue that neither party can predict a train’s composition—particularly when transporting hazardous materials—implies an alarming lack of awareness in appellants’ own operations. Indeed, train crews are actually required to maintain a document that reflects the current position in the train of each rail car containing a hazardous material.”

The most onerous operational obligation on railroads is mandatory electronically controlled pneumatic (ECP) braking on so-called “high hazard flammable unit trains” (HHFUT) defined as one with 70 more cars including any single car laden with a Packing Group 1 cargo, such as crude oil or ethanol.

HHFUTs must have ECP braking by 2023, or slow to 30 mph. (ECP braking is not yet prescribed in Canada and any conventionally braked unit trains will have to slow once they cross the border.)

The regulators’ denial addresses ECP braking in far greater technical detail than did the original final rule, perhaps in anticipation of eventual judicial review, although ECP braking was not mentioned by the AAR in its response to the appeal denials.

The AAR had argued in its appeal that ECP braking is unreliable and unnecessary when locomotives are dispersed throughout a train to provide distributed mechanical braking. The regulators countered that: “ECP brakes allow for shorter stopping distances and reduced in-train forces. In the ECP brake mode of operation, all cars brake simultaneously by way of an electronic signal. ECP brake systems simultaneously apply and release freight car air brakes through a hardwired electronic pathway down the length of the train, and allow the engineer to “back off” or reduce the braking effort to match the track grade and curvature, without having to completely release the brakes and having to recharge the main reservoirs before another brake application can be made.

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