In my former days defending agency actions in federal court, I had a standard line I used with frequent success when rules were attacked by all sides: “Your Honor, we’ve been sued here by both industry and environmental NGOs; we must be doing something right!” The same might be said for the U.S. Department of Transportation’s (USDOT) final rule addressing tank car standards and the shipment of flammable liquids, but focused on crude oil.
Various interest groups, NGOs, and industry associations literally distributed their press releases during the joint press conference announcing the final rule held by Secretary Anthony Foxx and Canadian Transport Minister Lisa Raitt. This resembled the dynamics of a political campaign where the opposition party tweets, texts, and blogs before the other guy or gal can even announce their candidacy.
So what’s gotten everyone so worked up? In short, the final rule either goes too far or doesn’t go far enough, either institutes reform too quickly or mandates reform too slowly. A brief review of the final rule’s highlights, and the positions taken by various stakeholders, demonstrates the challenges USDOT faced in crafting the rule and now, defending it.
Enhanced Braking. A flawed braking system most likely caused the catastrophic Lac-Mégantic accident in the summer of 2013. Therefore, those trains designated as “high-hazard flammable unit trains” (an HHFUT for short – a train comprised of 70 or more loaded tank cars containing Class 3 flammable liquids traveling at greater than 30 miles per hour) that transport at least one packing group I (the most dangerous) flammable liquid must be operated with an enhanced braking system by 2021. All other HHFUTs have until 2023 to be so equipped. Does this 6-8 year phase-in period accurately reflect the urgency of the potential problem?
New Tank Car Standards. Existing tank cars (really focused on the old DOT-111 series, but applicable to some others too) must be retrofitted to design or performance standards; those changes must be completed based on a schedule laid out in the rule. The conformance period ranges from 2 to 10 years. Given how experts have been targeting the old DOT-111 cars for years now (even before the huge increase in the shipment of Bakken crude oil), is this concession to the practicality of compliance fair or reckless?
Safe Operating Speeds. All tank cars NOT meeting the enhanced standards set out in the rule must operate at a 40 miles-per-hour speed restriction in “high-threat urban areas” as defined in Transportation Security Administration regulations. This is a reduction to the current standards of 50 miles-per-hour. All HHFTs, including those meeting the standards, will be restricted to 50 miles per hour everywhere else. Is this a common-sense restriction or are the root causes of derailments and other accidents more related to infrastructure condition than operation standards?
Testing Petroleum-Based Products. Despite claims from the oil industry that Bakken crude (or similar products) are not that different from other crude oil products, the rule requires additional testing and sampling, as well as reporting to DOT officials upon request. If there is a sense that Bakken crude really is different, should there be more aggressive rules demanding more intensive handing of those materials other than additional testing and sampling?
In many ways, the rule reflects administrative actions taken by DOT over the last 12-18 months while the final proposal was being sorted out at the Department and at the White House Office of Management and Budget. A series of steps had already been taken focused on route planning, reporting and disclosures, speed restrictions and tank car upgrades. The swiftness of stakeholder responses demonstrates that the final rule held no surprises for the regulated community and the general public.
The true test begins now. Can a rule that imposes “costly systems not justified in terms of improved safety benefits,” (American Association of Railroads) and equipment standards where “the safety impact… is marginal at best,” (American Petroleum Institute) or that “does not fully safeguard communities from the threat of oil train infernos” (Public Citizen) gain the support of industry and public interest groups alike?
Folks at the Department of Justice should feel free to use my old line – if everyone is mad, the rule must have hit the mark.