PHMSA Pre-Empts Washington State Crude-by-Rail Rule
Update 5/15/20: PHMSA's preemption determination concerning Washington State's vapor pressure requirement for crude oil by rail appeared in the Federal Register today, May 15, 2020.
Update 05/11/20: PHMSA has finalized its preemption determination (pre-publication) and found that Federal Hazardous Material Transportation Law preempts Washington State's vapor pressure requirement for crude oil by rail.
PHMSA cites a study which concluded that imposing vapor pressure limits would not reduce the risks of transporting crude oil and other flammable liquids by rail.The Preemption Determination is available in pre-publication form at the link above. It will appear in the Federal Register soon.
Update 08/13/19: PHMSA extended the comment period to allow public comments until September 23 and rebuttal comments until October 23, 2019 to be considered before PHMSA makes its determination.
The Washington State Senate approved legislation in March 2019 (SB 5779) to prohibit loading or unloading of crude oil from rail tank cars unless the oil has a vapor pressure of less than nine pounds per square inch.
Now two states, North Dakota and Montana, have asked PHMSA to determine whether Federal hazardous materials transportation law pre-empts the new Washington State requirements.
The states believe the law should be preempted because it poses an obstacle to accomplishing the purposes of the Hazardous Materials Transportation Act (HMTA). The states also argue that the law “amounts to a de facto ban on Bakken crude.” Under Federal law (49 U.S.C. 5125(d)(1), US DOT must issue a decision on the application within 180 days of the publication of notice in the Federal Register.
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Washington State’s prohibition does not take effect immediately. It is set to become effective two years after Washington’s Department of Ecology notifies legislators that the volume of crude oil transported by rail in a calendar year has increased more than 5% above the volume reported in 2018.
A summary of the law, including arguments made for an against it, is available in a state House Committee report on the bill.
What Is Federal Preemption Under Hazmat Transportation Law?Federal agencies like US DOT may “pre-empt” or invalidate State or local laws or regulations when those State rules conflict with or encourage noncompliance with Federal requirements.
To see the Federal pre-emption rules for hazardous materials, see 49 U.S.C. 5125. Recent cases where PHMSA weighed in on matters of Federal preemption of State or local laws related to hazmat transportation include:
- California’s required meal breaks for truck drivers; and
- Hazmat inspection and permit rules created by the New York City Fire Department
PHMSA’s Crude Oil Vapor Pressure Rulemaking EffortIn early 2017, PHMSA released an Advanced Notice of Proposed Rulemaking that to request input on limiting the vapor pressure of crude oil (and other Class 3 hazardous materials) transported by rail.
The ANPRM was issued in response to a petition from the Attorney General of New York which requests that PHMSA implement a Reid Vapor Pressure (RVP) limit less than 9 pounds per square inch (the same value chosen by Washington’s legislature in SB 5779). According to the most recent Unified Agenda of Regulatory and Deregulatory Actions, the PHMSA rulemaking effort has since been moved to the list of Long-Term Actions under RIN #2137-AF24.
PHMSA’s Other May 2020 Pre-emption DeterminationThe pre-emption of Washington State’s vapor pressure requirements for crude-by-rail was one of two such determinations in the May 11 Federal Register. PHMSA also denied a petition from New York City to reconsider its 2017 decision to pre-empt a hazmat fee imposed by FDNY.
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