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Why it Matters
In 2013 and 2014, a number of high-profile incidents involving movement of crude oil by rail raised questions about safety for industry, federal regulators, and Congress. For example, a derailment and subsequent fire in Lac-Mégantic, Quebec, Canada, caused 47 fatalities and destroyed a significant amount of property, and a North Dakota derailment caused $13.5 million in damage. Both incidents also released crude oil into the environment. As the result of an industry-led effort, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration (FRA)—both part of the U.S. Department of Transportation (USDOT)—required railroads transporting crude oil to install electronically controlled pneumatic (ECP) brakes. These brakes use electronic signals to simultaneously apply and release brakes throughout the length of a train instead of each car individually applying brakes. The Trump Administration repealed that requirement.
PHMSA and the FRA repealed the ECP brakes rule on Sept. 25, 2018, following a FAST Act-required review of the costs and benefits of the rule that found the costs exceeded the benefits. The agencies issued the final rule without providing an opportunity for public notice and comment. The decision was administratively appealed by a group of environmental organizations, led by Earthjustice, on Oct. 25, 2018. A study by The Associated Press released Dec. 20, 2018 found that the RIA omitted up to $117 million in estimated future damages from train derailments that could be avoided by using electronic brakes. As a result of this study, the agencies issued a technical correction to the RIA no Jan. 28, 2019, but it still showed costs exceeding the benefits of the rule. The repeal remains in place.
Sept. 6, 2013 PHMSA publishes an Advance Notice of Proposed Rulemaking, entitled, Hazardous Materials: Rail Petitions and Recommendations To Improve the Safety of Railroad Tank Car Transportation, specifically requesting comments on how brake systems might be used to reduce the number of tank cars involved in a derailment.
Aug. 1, 2014 PHMSA and the FRA issue a notice of proposed rulemaking for the Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (HHTFs) rule. The rule establishes tank car standards and operations protocols for moving large volumes of flammable liquids by rail.
May 8, 2015 PHMSA and the FRA release a final rule, Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains. The rule required the installation of ECP brake systems by 2023 for any trains meeting the definition of a high-hazard flammable unit train: a train comprised of 70 or more loaded tank cars containing Class 3 flammable liquids traveling at speeds greater than 30 miles per hour.
Dec. 4, 2015 Congress passes the Fixing America’s Surface Transportation (FAST) Act, which, in Section 7311, required the FRA to re-study the efficacy and costs of ECP brake systems and repeal the ECP requirements if it made certain determinations. USDOT has to consider the results of Government Accountability Office (GAO) and National Academy of Sciences (NAS) reports.
Oct. 12, 2016 GAO releases its report, DOT’s Rulemaking on Electronically Controlled Pneumatic Brakes Could Benefit from Additional Data and Transparency, GAO-17-122, which recommends that USDOT revise certain estimates in the RIA.
Feb. 22, 2017 NAS submits Phase 1 of its study to USDOT, reviewing USDOT’s proposed testing and analysis plan.
March 28, 2017 President Trump releases Executive Order 13783, Promoting Energy Independence and Economic Growth, which directs agencies to review existing regulations and agency actions that potentially burden the development or use of domestic energy resources.
May 31, 2017 GAO releases its report, 2015 Electronically Controlled Pneumatic Brake Rule: Comparison of DOT Forecasts for Selected Data Points for 2015 and 2016 to Preliminary Data for Those Years, GAO-17-567R, which provided additional technical comments on the rule.
Sept. 29, 2017 NAS submits Phase 2 of its study to USDOT, concluding that “on the basis of the results of testing and analysis provided by DOT with regard to the modeling of train derailment scenarios, the committee is unable to make a conclusive statement concerning the emergency performance of ECP brakes relative to other braking systems.” The report is publicly released Oct. 5, 2017, and not posted to the docket until Oct. 5, 2018.
Oct 16, 2017 PHMSA and the FRA issue a request for comments on their updated RIA, providing commenters 15 days to submit comments.
Dec 4, 2017 On the statutory deadline set by the FAST Act, PHMSA and the FRA issue a determination that the RIA indicates the ECP brake requirements are not economically justified and announce that the agencies will initiate a rulemaking to rescind the 2015 provisions.
Sept. 25, 2018 PHMSA and the FRA repeal the ECP rule, based on their updated RIA that showed the costs exceeded the benefits. The agencies issue the final rule without providing an opportunity for public notice and comment as is normally provided under the Administrative Procedure Act (APA), relying on the APA’s “good cause” exception. They argue that the public was afforded an opportunity to comment on the RIA that formed the basis for determination of whether the ECP brake system requirements would be removed.
Oct. 25, 2018 A group of environmental organizations, led by Earthjustice, administratively appeal the final rule. They argue that the repeal of the ECP brake system requirement violated notice-and-comment rulemaking requirements and improperly relied on an out-of-date RIA, the assumptions and estimates of which have been undercut by recent increases in crude-by-rail traffic.
Dec. 20, 2018 The Associated Press releases its findings that the RIA omitted up to $117 million in estimated future damages from train derailments that could be avoided by using electronic brakes.
Jan. 28, 2019 The agencies issue a technical correction to the RIA, but still show that costs of the rule exceed its benefits.