On April 17, 2015 the Department of Transportation (DOT) issued a series of emergency orders designed to help improve the safety of transporting crude oil by rail. In its news release announcing the new orders, the DOT stated, “Immediately slowing trains to 40 mph, increasing inspections for wheels and related equipment, and having access to information to fully and effectively respond to a derailment will either serve to prevent accidents [or] mitigate the consequences of an accident should one occur.” Federal safety regulations, incorporating these orders and with the aim of making moving oil by rail safer, were published on May 1, 2015.

The emergency orders and subsequent final regulations were issued in response to the dramatic increase in the volume of crude oil being shipped by rail and the number of disastrous derailments since 2010. New technology has made it possible for oil companies to tap into the oil rich Bakken shale oil deposits in North Dakota, Montana and Alberta Canada, estimated to contain more than 7.5 billion barrels of crude oil. Because pipelines do not have the capacity to handle the increased volume, railroads were enlisted to carry the crude oil to refineries throughout the United States. In 2014, railroads hauled 493,126 tank cars of crude oil from the Bakken region, up from 9,500 cars in 2008. Each tank car holds about 30,000 gallons of fuel. Louisiana itself receives 25 to 35 shipments of crude oil per week.

There are a variety of concerns that the regulations are not strict enough. Although the railroad companies struggle to maintain and improve the rail system’s infrastructure, the majority of oil tank cars in service today were not built to carry volatile crude oil. Also, many smaller community responders have neither special training nor the necessary equipment to control a crude oil fire. Six derailments involving crude oil tank cars have resulted in an oil spill or explosion in the past two years. Of those six accidents, only one train was traveling more than 40 miles per hour. Each of the other trains was traveling at less than 40 mph, and all of the oil tank cars involved were the newer, supposedly safer models. Importantly, in none of the six incidents were emergency responders made aware that the crude oil trains were traveling through their community, a complaint voiced by many major city mayors. Oil and railroad companies as well as federal agencies have prevented dissemination of such information under the guise of anti-terrorism security. However, as critics of this security explanation point out, each crude oil tank car must have a large red, white, and black diamond-shaped placard on its side identifying it, belying any secrecy as to what that car is carrying. Finally, environmentalists are concerned that the recent derailments have resulted in major oil spills, contaminating ground water and polluting nearby rivers and streams, spreading the initial disaster far beyond the site of the accident. In most instances, the only solution to a crude oil tanker fire has been to let it burn, thus releasing toxic fumes and polluting the atmosphere.

Many feel that the final regulations not only fail to address the concerns expressed when the emergency orders were published but also weaken some of the previously published rules. On May 6, 2015, less than a week after the final regulations were published, a 109 car crude oil train derailed near the small rural community of Heimdal, ND. Six of the tank cars exploded and burst into flame even though the crude oil had been treated to be less flammable in accordance with new regulations enacted by the state of North Dakota, which, along with several other state legislatures, has recently enacted safety regulations for transporting crude oil through their communities. There is strong concern that these state regulations are piecemeal, and members of congress are calling on DOT for a stronger national standard. In particular, congress points to the need to strengthen the new rules regarding volatility standards and requirements for safer tank cars. On the same day as the North Dakota derailment, several senators wrote to DOT Secretary Foxx about their concern that the new federal regulations make it more difficult for the public to know when crude oil is being shipped through their communities, stating “we call upon you to issue an Emergency Order that improves the process for providing detailed information on crude-by-rail movements and volumes to first responders, shifts the onus for information sharing onto the railroads and not communities, and allows for the continued public availability of broader crude-by-rail data on movements and routes.”

On Monday, May 11, the American Petroleum Institute, the oil industry’s main trade group, petitioned the United States Court of Appeals for the District of Columbia Circuit to block key provisions regarding the timing of compliance with the new final regulations. This controversy over regulating the oil industry and the transport of crude oil by rail will continue as the traffic of crude oil from the Bakken shale region in the northern plains increases.

Author: Kevin E. Huddell

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