News & Publications

Rail Law Alert No. 13

U.S. DOT Issues Emergency Order, Safety Advisory Regarding Transportation of Bakken Crude Oil

On May 7, 2014, the United States Department of Transportation (U.S. DOT) issued an Emergency Order and the Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a joint Safety Advisory to address what U.S. DOT has determined to be an imminent hazard posed by the shipment by rail of petroleum crude oil sourced from the Bakken shale formation in the Williston Basin in Montana, North Dakota, and the Canadian provinces of Saskatchewan and Manitoba. The Emergency Order is effective as of May 7, 2014. Railroads that fail to comply may be subject to civil penalties and criminal prosecution.

The Emergency Order requires freight railroads to contact the State Emergency Response Commission (SERC) in each state affected by shipments meeting the Emergency Order's criteria to provide essential information to assist emergency responders in preparing for and responding to accidents involving crude-by-rail shipments. Other entities, such as municipalities or passenger rail operators, who may be affected by the freight railroads' compliance with the Emergency Order, would need to contact their respective SERCs to obtain what information may be available to aid their respective emergency responses.

The Emergency Order requires all railroad carriers that transport at least 1,000,000 gallons Bakken crude oil, equivalent to approximately 35 tank cars, in a single train to provide to each state’s SERC:

  • a reasonable estimate of the number of trains expected each week through each affected county within the state;
  • the routes over which such trains will travel;
  • identification and description of the petroleum crude oil expected to be transported, in accordance with 49 C.F.R part 172, subpart C;
  • all applicable emergency response information required by 49 CFR part 172, subpart G; and
  • at least one point of contact at the railroad who will serve as the point of contact for SERCs and relevant emergency responders related to the railroad’s transportation of Bakken crude oil.

If a railroad anticipates an increase or decrease of 25 percent or more in the number of trains per week in any affected county, it must notify the SERC of that change. Affected railroads that fail to supply the information required by the Emergency Order to a state’s SERC by June 6, 2014, must cease all shipments of at least 1 million gallons of Bakken crude oil on a single train in that state, and may resume shipments only after providing the information required by the Emergency Order.

Additionally, FRA and PHMSA issued a joint Safety Advisory encouraging offerors and rail carriers of Bakken crude oil to only use tank car designs with the highest level of integrity reasonably available. FRA and PHMSA also urge offerors and carriers of Bakken crude oil to avoid use of older, legacy DOT Specification 111 or CTC 111 tank cars for the shipment of such oil to the extent reasonably practicable.