On October 8, the National Wildlife Federation (“NWF”) fulfilled its promise to sue the U.S. Department of Transportation (“DOT”). The lawsuit alleges that for 20 years the DOT has allowed pipelines to operate illegally by failing to issue regulations under section 311(j) of the Clean Water Act (“CWA”), which requires pipeline operators to submit plans
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Pipeline Operators Take Heed – Threatened Enviro Lawsuit May Lead to Greater Regulatory Requirements
By Mike Mills & Eric Skanchy on
On July 28, 2015, the National Wildlife Federation (“NWF”) filed an intent to sue notice against the Department of Transportation (“DOT”), arguing the DOT has not properly approved pipeline projects for more than 20 years.
The legal action carries nationwide implications: Every U.S. oil pipeline that intersects a navigable water may soon be subject to additional regulations.
Specifically, NWF contends that DOT has failed to issue regulations under section 311(j) of the Clean Water Act (“CWA”), requiring an owner or operator of a pipeline to prepare and submit a facility response plan (“FRP”) detailing response actions to be taken in the event of a worst-case discharge of oil or hazardous substances into waters of the United States.
Continue Reading Pipeline Operators Take Heed – Threatened Enviro Lawsuit May Lead to Greater Regulatory Requirements
New State Oil-By-Rail Regulations Take Effect, While Rail Capacity Is Squeezed
By Andrew Pieper on
As we reported earlier, consideration of proposed federal rulemaking concerning crude oil-by-rail transportation recommended by the Pipeline and Hazardous Material Safety Administration and Federal Railroad Administration is underway, and, after receiving more than 3,000 submissions, the comment period closed on September 30. Nevertheless, and despite the possibility of preemption challenges in litigation, state…
Railroad Companies Allege Federal Law Governing Petroleum Transport Preempts SB 861
By Mike Mills on
Posted in Oil & Gas
Railroad transportation of raw petroleum, often referred to as “crude-by-rail,” has received increasing media attention in recent months, due to health and environmental concerns. California took a stab at legislating rail transport through Senate Bill 861 (“SB 861”), which the State Legislature passed in June 2014 and the Governor subsequently signed into law. On Tuesday, October 7, 2014, a group of railroad companies, led by Union Pacific Railroad Company, filed a complaint the United States District Court, Eastern District of California, alleging that SB 861 is preempted by federal law.
SB 861 imposes requirements on railroads operating within California that are duplicative of federal regulations. For example, the law mandates oil spill prevention measures including reporting the quantity and substance of transported materials, and a map of track routes and facilities, both which are already required under federal law. (See Gov. Code § 8670.29.) Additionally, railroad operators must submit and gain approval of an oil spill contingency plan before they can legally operate throughout California.Continue Reading Railroad Companies Allege Federal Law Governing Petroleum Transport Preempts SB 861
USDOT Proposes New Rules for Rail Transport of Fossil Fuels
By Mike Mills on
Posted in Oil & Gas
On Wednesday, July 23, 2014 the Pipeline and Hazardous Materials Safety Administration (“Administration”), an agency within the U.S. Department of Transportation (“USDOT”), issued a Notice of Proposed Rulemaking (“NOPR”) for rail transport of crude oil and ethanol. The NOPR, titled “Enhanced Tank Car and Operational Controls for High-Hazard Flammable Trains,” is available online, but has not yet been published in the Federal Register.
There are three main provisions of the NOPR: “(1) new operational requirements for certain trains transporting a large volume of Class 3 flammable liquids; (2) improvements in tank car schedules; [and] (3) revision of the general requirements for offerors to ensure proper classification and characterization of mined gases and liquids.” (NOPR, at p. 1.) Notably, the USDOT proposes to phase out the use of older USDOT tank cars for the shipment of certain liquids within two years, unless the tank cars are retrofitted to comply with new tank car design standards. (See USDOT, U.S. DOT Announces Comprehensive Proposed Rulemaking for the Safe Transportation of Crude Oil, Flammable Materials.) This rule would include gradual prohibition on transport of most Bakken crude oil.Continue Reading USDOT Proposes New Rules for Rail Transport of Fossil Fuels
With Increased Federal Scrutiny, State Governments Look To Expand Oil-By-Rail Oversight
By Andrew Pieper on
With the federal Department of Transportation’s recent emergency order impacting those who transport crude oil by rail, state governments are likewise considering additional regulatory oversight that could affect the industry in the wake of recent train derailments such as the one yesterday in Virginia.
In Minnesota, where more than 800 tank cars carrying oil…
UPDATE: USDOT Clarifies Its Oil-By-Rail Emergency Order To Answer Industry Concerns
By Andrew Pieper on
In response to questions raised by the petrochemical industry, the federal Department of Transportation (USDOT) amended its emergency order restricting those who transport crude oil by rail in the United States last Thursday. Among other revisions, the amended order requires that shippers test their oil cargoes with sufficient frequency to ensure that their hazardous…
USDOT Issues Emergency Order Impacting All Bakken Crude Oil Rail Shipments
By Andrew Pieper on
Posted in Oil & Gas
In response to safety concerns over trains carrying crude oil extracted from Bakken shale, the federal Department of Transportation (USDOT) issued an Emergency Restriction/Prohibition Order yesterday, affecting all those who transport crude oil by rail in the United States.
Specifically, the USDOT stated that its investigations into train accidents and derailments in North Dakota…