Regulatory limbo keeping safer crude cars off the tracks, lawmaker says

WASHINGTON — The government’s long delay in drafting mandates for stronger tankers to haul crude across the nation’s train tracks is paralyzing companies that want to invest in safer cars, a Democratic lawmaker charged Wednesday.

Although BNSF Railway Co. and some oil companies are buying improved tankers on their own and voluntarily phasing out legacy DOT-111 cars deemed rupture-prone,   the regulatory limbo deters broader investments in safer alternatives, said Rep. Peter DeFazio of Oregon.

“Right now, you have so much uncertainty,” DeFazio said. “People aren’t going to make the investments in safer cars and we’re going to keep running these crummy 111s as they are and killing people.”

DeFazio’s comments came during the first major congressional hearing on rail safety since a series of accidents involving crude-carrying trains put a spotlight on the risks from surging crude cargoes on the nation’s tracks.

Railroads  are filling in where oil pipelines don’t exist to carry crude from North Dakota and Alberta, Canada to coastal refineries — about 400,000 carloads in 2013, up from just 9,500 five years earlier.

Under a deal between the Transportation Department and the Association of American Railroads last week, oil trains pulling at least 3 million gallons of crude will slow down near big cities in an effort to reduce the risk of potentially devastating derailments. The railroad association also pledged more inspections of the nation’s train tracks.

But Robert L. Sumwalt, a member of the National Transportation Safety Board, told a House transportation subcommittee that more needs to be done to improve the tankers carrying hazardous materials.

Railroads and the oil industry voluntarily adopted some improvements for DOT-111s produced after October 2011 following an ethanol accident in Illinois, even as regulators at the Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration mulled new regulatory standards.

The agencies ultimately could choose to endorse the voluntary standard adopted in 2011 known as CPC 1232, or require even tougher safeguards. But for now, they have left the pre-2011 federal requirements in place, while they draft new mandates.

Cynthia Quarterman, who heads the Pipeline and Hazardous Materials Safety Administration, said her agency and the Railroad Administration are writing a new rule, but even once the agencies are finished, the proposal would spend at least four months in a separate regulatory review process at the Office of Management and Budget.

Although Quarterman declined to specify a timeline, that suggests that final requirements might be out in 2015, at the earliest.

Sumwalt said the  National Transportation Safety Board has had longstanding concerns about the existing regulations covering crashworthiness of DOT-111 cars. ”Quite simply,” he said, “continued use of current regulatory specifications for these tank cars to ship flammable liquids poses an unacceptable public risk.”

Even the voluntary improvements made in 2011 may not be sufficient, Sumwalt said.
“An improved federal standard would provide the certainty needed on tank car design,” he said. “Improvements like enhanced head shields, tank jackets and increases in tank shell thickness could all improve tank car crashworthiness.”

So far, railroads — which don’t generally own the tank cars they pull — agree with that assessment. BNSF Railway Co. has pledged to buy new crude tankers with even more improvements than specified in the voluntary 2011 guidelines.

“The tank car standard that was adopted voluntarily by our industry, the American Petroleum Institute and others in October 2011 can itself be improved on,” said Ed Hamberger, president of the Association of American Railroads. He rattled off a litany of recommended improvements including thermal wrapping, protection around tank car fittings and thicker steel shells.

He said the association also believes that existing legacy DOT-111 cars should be retrofitted or phased out of service.

Some oil industry leaders have recommended a cautious approach on the tank car mandates.

“In 2011, the oil and natural gas industry helped lead the multi-industry effort that led to improvements in the design of our tank cars, and we moved forward voluntarily with those improvements,” said Jack Gerard, who heads the American Petroleum Institute. He said nearly 40 percent of the tank cars in use by the oil industry exceed the existing federal standard.

Gerard urged that regulators and stakeholders take a “holistic” approach to boosting rail safety by focusing on preventing accidents, mitigating their scale and improving emergency response capabilities.

In a heated exchange with DeFazio, Quarterman said regulators welcomed the voluntary investments by oil companies and railroads in newer, safer cars — even without clear signals of what the federal government ultimately  might require.

“We need to get this right,” Quarterman said. “We need to hear the comments from all the parties involved.”

DeFazio seemed unconvinced.

“We could make the existing cars safer. We’re not requiring that,” he complained. “We could condone the existing new design and say if you buy that you could use it for the next 30 years. We could look at what NTSB has proposed as the design and put that out there. We could have some certainty.”

Instead, he said, industry and residents along rail lines are left without clarity.