R-15-016 Safety Recommendation was reiterated as a result of NTSB Railroad Accident Report, “Derailment and Hazardous Materials Release of Union Pacific Railroad Unit Ethanol Train, Graettinger, Iowa, March 10, 2017.” Report Number RAR-18-02. Adopted on October 30, 2018 and published on November 27, 2018.
2.5.4 DOT-111 Tank Car Fleet Replacement
PHMSA final rule HM-251, published on May 8, 2015, established new and safer specification DOT-117 tank car design criteria for nonpressure tank cars transporting flammable liquids, a performance standard DOT-117P, and a retrofit standard DOT-117R to which existing DOT-111 tank cars may be converted (Federal Register, 2015a, 26644). These new specifications were intended to address crashworthiness concerns NTSB raised in earlier investigations that cited poor DOT-111 tank car performance as a critical safety issue. The new specifications addressed NTSB Safety Recommendations R-12-5 and R-12-6 that called for enhanced puncture resistance and fitting and valve protection for tank cars transporting crude oil and ethanol that were issued as a result of the June 19, 2009, derailment of an ethanol unit train in Cherry Valley, Illinois (NTSB 2012). The new specifications also addressed NTSB Urgent Safety Recommendations R-15-14 and R-15-15 that stressed the importance of thermal protection systems for new and existing tank cars in flammable liquids service that were issued following the February 16, 2015, derailment of a crude oil unit train containing CPC-1232 tank cars in Mount Carbon, West Virginia.75 In accordance with final rules HM-251 and HM-251C [as mandated by the Fixing America’s Surface Transportation Act (FAST Act)], the HMR have established commodity-based deadlines for phase-out or retrofitting DOT-111 tank cars in continued flammable liquids service (Federal Register, 2016a, 53935).
PHMSA final rule HM-251 is not the first time that the DOT mandated a tank car safety enhancement and retrofit program. The DOT embarked on a similar effort in 1977, when it issued final rule HM-144, requiring that all new and existing specification 112 and 114 tank cars transporting flammable gases be equipped with thermal and tank head protection systems, and coupler restraint systems (Federal Register, 1977, 46306). In response to a 1978 NTSB public hearing on derailments and hazardous materials, the DOT amended the rule to require an accelerated retrofit schedule for existing flammable gas tank cars over a 2.5-year period (Federal Register, 1978a, 30057). The retrofit schedule required fleet owners to retrofit 20 percent of their existing fleets within 6 months, 65 percent by the following year, and their remaining tank cars by the following year.
In September 1978, the DOT issued a supplementary final rule to address compliance reporting (Federal Register, 1978, 39792). At that time, the DOT recognized that it was not sufficient to simply mandate the retrofit program because neglect by a tank car owner or owners to establish an adequate pace of retrofit could have resulted in a failure to meet regulatory deadlines. The DOT was concerned that such a failure could have resulted in an accumulation of unequipped cars, which would have been prohibited from use in transportation. The NTSB has the same concerns today regarding the current ethanol fleet of DOT-111 tank cars. Because the ethanol fleet of legacy DOT-111 tank cars constitutes a substantially large percentage of the overall general service tank car fleet, the NTSB is concerned about the potential for critical short-term shortages of DOT-117-compliant tank cars for flammable liquids transportation if tank car owners fail to take adequate measures to assure the phased completion of the retrofits and replacements. Due to the high demand for general service tank cars to transport ethanol and other flammable materials, it is essential that tank car owners make careful plans to assure their fleets are converted in advance of applicable deadlines.
The accident tank cars were constructed between 2003 and 2009 and had the least crash-resistant features available for flammable liquids service. These legacy DOT-111 tank cars have the thinnest (7/16-inch thick) tank shells that are usually constructed of non-normalized steel, no head shields or puncture resistance system, no thermal protection system, and too little protection for top and bottom fittings. These shortcomings are responsible for the track record of poor accident performance for DOT-111 tank cars, especially since 2007 following their introduction into widespread use for flammable materials unit trains.
Federal regulations place the burden on the shipper to offer the hazardous material in a package that is authorized for transportation. Although safer tank cars such as the DOT-117 are available, Green Plains obtained the accident train tank cars that meet current federal minimum safety standards from seven different leasing companies based on availability and market prices. Since most shippers are not rail car fleet owners and generally obtain tank cars through full service lease terms, they must rely on third-party leasing companies to ensure that replacement tank cars are available before the regulatory deadline for replacing DOT-111 ethanol tank cars by May 1, 2023.
None of the tank cars in the accident train consist were constructed to DOT-117 specification requirements. At the time of this accident, three of the seven leasing companies that supplied tank cars used in the accident train had purchased significant numbers of DOT-117 tank cars. However, their rail car leasing fleets consisted predominantly of legacy DOT-111 and CPC-1232 tank cars.76 At the time of this accident, three other leasing companies that supplied tank cars for the accident train had no DOT-117 tank cars in their fleets.
Prior to the publication of PHMSA final rule HM-251, the NTSB expressed concern about the lack of intermediate progress milestones for completing tank car modifications or replacements and the lack of transparency to hold the rail car owners accountable for progress toward implementing safer tank car fleets. This issue was addressed following the investigation of the Mount Carbon, West Virginia, accident with safety recommendations to PHMSA.77
Require an aggressive, intermediate progress milestone schedule, such as a 20 percent yearly completion metric over a 5-year implementation period, for the replacement or retrofitting of legacy DOT-111 and CPC-1232 tank cars to appropriate tank car performance standards, that includes equipping these tank cars with jackets, thermal protection, and appropriately sized pressure relief devices. (R-15-16)
Safety Recommendation R-15-16 is currently classified Open—Unacceptable Response because PHMSA has not established a clear set of intermediate metrics that it could use to evaluate the safety improvement progress. The second recommendation, Safety Recommendation R-15-17, requested PHMSA:
Establish a publicly available reporting mechanism that reports at least annually progress on retrofitting and replacing tank cars subject to thermal protection system performance standards as recommended in safety recommendation R-15-16. (R-15-17)
Safety Recommendation R-15-17 is classified Open—Acceptable Response because PHMSA, collaborating with its stakeholders, entered into an agreement with the Bureau of Transportation Statistics (BTS) to collect and report data about progress made in modifying or replacing DOT-111 tank cars. To encourage compliance with DOT-111 replacement deadlines, Section 7308 of the FAST Act required the secretary of transportation to implement a reporting mechanism to monitor industry-wide progress toward modifying tank cars and to report the aggregate results of its tank car data survey annually to Congress.
On September 22, 2017, the BTS submitted its first report to Congress detailing the fleet composition of rail tank cars transporting flammable liquids (BTS 2017). The BTS reported that as of the end of 2016, about 9 percent of the 81,000 tank cars used to transport Class 3 flammable liquids met new safety requirements. At that time, most of the flammable liquids fleet (53 percent) still consisted of nonjacketed DOT-111 tank cars, such as the tank cars that were involved in this accident. The number of nonjacketed DOT-111 tank cars used to transport ethanol has remained steady between 2014 and 2016 at about 26,000 to 28,000. However, during 2016, the BTS reported some progress with about 1,700 new DOT-117 and 1,200 retrofitted DOT-117R tank cars added to the ethanol fleet. However, the slow pace of ethanol fleet tank car conversions has prompted concern by the AAR and others in the industry about the availability of DOT-117 tank cars to service the flammable liquids fleet in years to come (Fronczak 2017).
PHMSA stated in the U.S. Department of Transportation’s Status of Actions Addressing the Safety Issue Areas on the National Transportation Safety Board’s Most Wanted List: A Report to Congress and the National Transportation Safety Board that it is working with the rail industry and tank car facilities to develop reporting mechanisms to monitor tank car replacement progress and provide Congress with an annual written report (DOT 2017). PHMSA stated it believes the transparency of the BTS report will help encourage industry to replace tank cars at a rate ahead of scheduled deadlines. However, in contrast to the earlier pressure tank car replacement regime mentioned above, the current regulatory scheme that responds to Section 7308(e) of the FAST Act requires DOT to redact tank car owners’ identities from progress reports to Congress. It requires DOT to report data in industry-wide totals and to treat company-specific information as confidential business information; therefore, shielding individual fleet owners from public scrutiny of their tank car replacement progress, or lack of progress. Therefore, the report to Congress does not offer complete transparency.
Unlike the current regulatory system of assured anonymity and voluntary compliance that lacks targeted milestones, DOT chose to remedy potential failure of the earlier program in 1978 when it tasked FRA with closely monitoring the manner in which tank car owners complied with the deadlines. Thus, the 1978 rule required specification 112 and 114 tank car owners to file quarterly progress reports with the FRA, identifying the total number of tank car retrofits accomplished, as well as a declaration of intent concerning the remaining tank cars in their respective fleets. DOT stated that in the event any owner failed to establish a program leading to the timely completion of the retrofit tasks, the FRA could have instituted a compliance order or could have taken appropriate legal action under the provisions of 49 CFR Part 209, “Railroad Safety Enforcement Procedures.” The flammable gas tank car retrofit program was completed in 1980, nearly 1 year earlier than originally anticipated, and the NTSB noted as a result, the frequency and severity of accidents with these tank cars had been significantly reduced.78
In its most recent quarterly report to the AAR Tank Car Committee in May 2018, the AAR stated, “Forty-three percent of the cars used to ship ethanol during the 1st quarter of 2018 were built since 2011 to new standards vs. less than 2 percent in 2013 [that were built after 2011 and met the new standards].”
In September 2018, the BTS sent its second report to Congress, Fleet Composition of Rail Tank Cars Carrying Flammable Liquids: 2018 Report. In this report, the BTS reported that nearly 20 percent of the tank cars used to carry Class 3 flammable liquids in 2017 met the new DOT-117 safety requirements—a significant increase from the 2 percent in 2015. The BTS further reported that nonjacketed DOT-111 tank cars, while carrying the largest share of flammable liquids, have decreased by 31 percent between 2014 and 2017. Furthermore, the number of both new and retrofit DOT-117 tank cars used in ethanol service more than doubled between 2016 and 2017 to over 6,000 tank cars (BTS 2018).
Newly available AAR flammable liquids fleet utilization figures indicate there was remarkable progress made in replacing DOT-111 cars to transport ethanol in 2017 and also during the first quarter of 2018. According to the AAR, almost 11,000 DOT-117 tank cars were used during the first quarter of 2018 to transport ethanol, while the number of DOT-111 tank cars used to transport ethanol dropped by the same amount between 2016 and 2018.
Despite recent tank car replacement progress, BTS and AAR fleet statistics indicate that still nearly one-half of the overall fleet of tank cars carrying flammable liquids were nonjacketed DOT-111, and most of these were used to transport ethanol. However, the NTSB concludes that since PHMSA has not established a clear set of intermediate metrics for evaluating tank car conversion and replacements, achievement of the deadlines may be overly reliant on future market and economic conditions. Therefore, NTSB reiterates Safety Recommendation R-15-16, which requests tank car retrofitting and replacement progress milestones.