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Oil Train Update: New Federal Regulations Go into Effect, Washington Enacts Legislation, and Legal Battles Continue

July 29, 2015

In a previous article, we discussed the North American oil boom’s unprecedented impact on transporting crude oil by rail car, the efforts state and federal governments have made to improve rail car safety in the wake of high-profile derailments, and the legal challenges facing those regulatory responses.[1] The last three months have seen developments in each area. The United States Department of Transportation (DOT) has issued long-anticipated regulations, and Washington governor Jay Inslee signed state tank car legislation into law. Meanwhile, a federal court has dismissed as premature a challenge to California’s crude-by-rail rules, while another is currently entertaining challenges to DOT’s rules.

I. Crude Oil Production, Transport by Rail, and Tank Car Derailments

Despite low prices (West Texas Intermediate crude oil futures have recently been trading at under $50 per barrel,[2] compared to over $100 per barrel a year ago[3]) United States crude oil production remains high. Indeed, the United States
Energy Information Administration (EIA) calculates crude production for the week of July 17, 2015 at 9.55 million barrels per day (b/d)[4]—a number that, if maintained throughout the year, would rival the 1970 record.[5] And while EIA predicts crude production to drop off slightly, it still forecasts 9.5 million b/d in 2015 and 9.3 million b/d in 2016.[6]

There are some indications of a dip in the amount of this crude oil that is shipped by rail, but overall numbers remain high. A drilling slowdown coupled with the completion of an 84,000 b/d pipeline and a 20,000 b/d refinery in North Dakota, for example, has resulted in fewer oil trains leaving that state.[7] However, North Dakota is still estimated to ship half of its approximately 1.2 million b/d by rail.[8] The most current EIA data shows that nearly 30 million barrels of crude were moved by rail in April 2015.[9] And while this is a drop from a high of nearly 35 million barrels in December 2014, it is still a far cry from the 630,000 barrels moved in January 2010, when EIA’s crude-by-rail record-keeping began.[10]

Just as crude production and rail transportation numbers have remained high, tank car derailments have continued to capture headlines. On May 6, 2015, a 109-car train carrying Bakken crude oil derailed near Heimdal, North Dakota.[11] Six cars caught fire, 34,000 gallons of oil burned, and 60,000 gallons spilled.[12] Most recently, 22 tank cars loaded with crude oil derailed near Culbertson, Montana.[13] Four cars leaked, spilling approximately 35,000 gallons.[14] Although 30 people were evacuated from nearby areas, the train did not catch fire, and no injuries were reported.[15]

II. Regulatory Developments

A. Federal Tank Car Regulations

DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued its final rule for Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains on May 1, 2015 (Tank Car Rule).[16] The rule, which went into effect on July 7, 2015, is “designed to reduce the consequences and, in some instances, reduce the probability of accidents involving trains transporting large quantities of flammable liquids.”[17] The Tank Car Rule does not apply to all crude-by-rail shipping. Instead, it imposes certain requirements on “high-hazard flammable trains” (HHFTs) and the cars they use. An HHFT is defined as “a single train transporting 20 or more loaded tank cars of a Class 3 flammable liquid [e.g., crude oil] in a continuous block or a single train carrying 35 or more loaded tank cars of a Class 3 flammable liquid.”[18]

Under the new rule, tank cars constructed after October 1, 2015 and used in HHFTs must meet either the design standards of the new DOT Specification 117 (DOT-117) tank car or the equivalent performance standards of the DOT-117P car.[19] The DOT-117 car selected by PHMSA is ultimately a compromise: commenters such as American Fuel and Petrochemical Manufacturers (AFPM) believed the car’s safety benefits not to justify its cost, while parties such as the National Transportation Safety Board (NTSB), environmental groups, and many members of the public believed that the car’s safety standards did not go far enough.[20] DOT-117s include the following standards:

  • A 9/16-inch thick steel shell, compared to the 7/16-inch shell on current DOT-111 trains.
  • A full-height, 1/2-inch thick head shield, which replaces the optional head shields on DOT-111 cars.
  • An 11-gauge jacket, as opposed to the optional jackets on DOT-111 cars.[21]
Figure 1
DOT-117 Tank Car
Figure 1


PHMSA’s Tank Car Rule will continue to allow existing DOT-approved tank cars to carry crude oil in HHFTs, but will require retrofitting over time. As with new tank cars, DOT offers both design- and performance-standard alternatives.[23] PHMSA’s retrofit design standards are less stringent than its standards for new tank cars. Retrofitted cars need not receive thicker shells—a step certain industry commenters and PHMSA believed not to be technically feasible—and, despite NTSB’s recommendations, need not receive top-fitting protection.[24] Still, retrofitting current tank cars is expected to be costly: PHMSA estimates the rule will lead to over $1.7 billion in retrofitting and retirement costs.[25] While some commenters had asked PHMSA immediately to ban non-retrofitted DOT-111 cars from carrying crude oil,[26] the agency ultimately pushed out its timeline for compliance in response to concerns about limited capacity to complete retrofits.[27] Retrofitting deadlines vary by car type and the category of flammable material carried, and range from January 1, 2018 (non-jacketed DOT-111 cars in packing group I service) to May 1, 2025 (jacketed CPC-1232 cars).[28] Existing tank cars may continue to transport crude oil indefinitely without retrofitting so long as they do not do so as part of HHFTs.

The Tank Car Rule also imposes a 40-mph speed limit for HHFTs in select, High Traffic Urban Areas (HTUAs), “unless all tank cars containing a Class 3 flammable liquid meet or exceed the DOT Specification 117 standards.”[29] The agency considered, but decided against, imposing a 40-mph speed limit for HHFTs in all areas, finding it “overly restrictive and highly costly.”[30] The Tank Car Rule also provides that outside of HTUAs, HHFTs may not exceed 50 mph, though this serves only to bring DOT regulations in line with current industry practices.[31]
The PHMSA rule also prescribes braking standards for HHFTs operating at speeds greater than 30 mph. Traditionally, U.S. rail cars have relied on air braking systems; when air pressure is removed from braided lines that run the length of a train, the cars’ brakes are applied. But because this system applies train cars’ brakes sequentially from the locomotive backwards, it can take as many as 16 seconds for a train’s brakes fully to engage.[32] A two-way end-of-train (EOT) device improves upon the conventional system by sending a radio signal that can activate the air valves in a train’s rear cars more quickly.[33] A distributed power (DP) system uses multiple locomotives positioned throughout a train for increased power, control, and, effectively, braking ability.[34] The most costly—and, arguably, effective—braking system considered by PHMSA is electronically controlled pneumatic (ECP) braking.[35] This system, which requires that each train car be equipped with special wiring, sends an electric signal to each car simultaneously, in theory reducing breaking times. However, existing train cars and locomotives have typically not been built with the necessary wiring, making this technology difficult to implement on a wide scale.[36]

All HHFTs operating in excess of 30 mph must now be equipped with either an EOT device or a DP system.[37] High Hazard Flammable Unit Trains (HHFUTs)—that is, an HHFT with 70 or more tank cars loaded with Class 3 flammable liquid—must employ ECP brakes no later than May 1, 2023.[38] HHFUTs carrying at least one car loaded with Packing Group I materials[39] must do so by January 1, 2021.[40] Again, trains carrying crude oil that do not qualify as HHFTs are not subject to the Tank Car Rule’s braking requirements.

The Tank Car Rule can also be read as modifying a notice requirement for railroads transporting one million gallons or more of Bakken crude in a single train that had been in place since May 7, 2014 when DOT issued the emergency order. The emergency rule required railroads to provide information to State Emergency Response Commissions including, for example, “estimated frequencies of affected trains transporting Bakken crude oil through each county in the state, the routes over which it is transported, a description of the petroleum crude oil and applicable emergency response information, and contact information for at least one responsible party at the host railroads.”[41] The new rule instead incorporates pre-existing routing requirements, with the result that oil train notice rules now apply more broadly—they reach all HHFTs, not just those trains carrying at least one million gallons of Bakken crude—but arguably produce less transparency: instead of reporting directly to emergency agencies, railroads instead would appear now to be required only to identify a point of contact to whom state, local, and tribal officials can turn for information.[42] However, on May 28, 2015, PHMSA issued a statement that “the May 2014 Emergency Order will remain in full force and effect until further notice while the agency considers options for codifying the May 2014 disclosure requirement on a permanent basis.”[43]

As discussed below, the Tank Car Rule has proved controversial, with parties on all sides challenging it in federal courts and before DOT.

B. Washington’s H.B. 1449

On July 1, 2015, Washington’s recently enacted oil train legislation went into effect. House Bill 1449 received wide support in the legislature, passing the House 95-1 and the Senate 46-0. While a comprehensive review of the statute is beyond the scope of this article, we highlight several notable provisions.

H.B. 1449 provides that “facilities” receiving crude oil from a rail car must provide advance notice of the shipment to Washington State’s Department of Ecology (Ecology).[44] This notice is to include information about the train’s route within the state, if known, as well as “the scheduled time, location, volume, region per bill of lading, and gravity … of crude oil received.”[45] Ecology is permitted to share this information with emergency response agencies upon request,[46] and Ecology must publish this information, aggregated on a statewide basis, each quarter.[47] However, H.B. 1449 prohibits Ecology from disclosing information obtained pursuant to its notice requirements that contains “proprietary, commercial, or financial information unless that information is aggregated,”[48] and specifically exempts such information from disclosure under Washington’s public records act.[49]

It is worth noting that only “facilities” must comply with H.B. 1449’s notice provisions. A “facility” is:

any structure, group of structures, equipment, pipeline, or device, other than a vessel, located on or near the navigable waters of the state that transfers oil in bulk to or from a tank vessel or pipeline, that is used for producing, storing, handling, transferring, processing, or transporting oil in bulk.[50]

The term expressly excludes railroad cars transporting oil.[51] Thus, H.B. 1449’s notice requirements do not apply to railroads themselves, but instead only to certain recipients of crude oil—namely, facilities that already were subject to Washington’s existing oil spill law. H.B. 1449’s financial assurance and oil spill contingency planning requirements, regulate railroads more directly.

Earlier versions of H.B. 1449 would have required railroads to demonstrate financial ability to pay for spill cleanups.[52] The enacted statute provides only that railroads transporting crude oil must “submit information to the [Utilities and Transportation Commission (UTC)] relating to the railroad company’s ability to pay damages in the event of a spill.”[53] While this information “must include a statement of whether the railroad has the ability to pay for damages resulting from a reasonable worst case spill of oil,” the new law explicitly provides that the UTC cannot use this information “as a basis for engaging in economic regulation of a railroad company,” or “for penalizing a railroad company.”[54] In other words, unlike California’s oil train law, H.B. 1449 does not require that railroads successfully demonstrate their ability to pay for spill-related damages as a prerequisite for transporting crude oil through the state.

Under H.B. 1449, railroads carrying crude oil are required to prepare oil spill contingency plans.[55] These plans must, at minimum, “include full details of the method of response to spills,” list the number and training of dedicated spill-response personnel, “describe important features of the surrounding environment,” and meet a number of additional requirements.[56] Until Ecology prescribes rules for railroad contingency plans, railroads may submit federal oil spill response plans developed under 33 U.S.C. § 1321.[57] Ecology may only approve a contingency plan if, inter alia, “the plan is capable … of removing oil promptly and properly and minimizing any damage to the environment.”[58] Once approved, contingency plans are valid for five years.[59] Approved contingency plans are legally binding, and Washington courts may compel their enforcement or restrain their violation.[60] Operating without an approved contingency plan subjects parties to criminal penalties of up to five years imprisonment[61] and civil fines of up to $100,000 for each day that a facility is in violation of the contingency plan requirement.[62]

H.B. 1449 also imposes certain taxes and fees. An “oil spill response tax” of one cent per barrel and an “oil spill administration tax” of four cents per barrel are now charged when crude oil or petroleum products are transferred from railroad tank cars to Washington bulk oil terminals.[63] These taxes are levied on the oil’s owner, however, not the railroads themselves. Railroads, for their part, see their fee paid to the UTC rise from 1.5% to up to 2.5% of their intrastate gross operating revenue. However, short-haul railroads not carrying crude oil still pay 1.5%.[64]

III. Recent Litigation
A. Challenge to California’s S.B. 861 Dismissed

In a previous article, we discussed the industry challenge to California’s oil train legislation then pending before the United States District Court for the Eastern District of California in Association of American Railroads v. California Office of Spill Prevention and Response.[65] In that case, the Association of American Railroads, Union Pacific Railroad Company, and BNSF Railway Company had argued that California’s S.B. 861 is preempted by federal law, including most prominently the Federal Railroad Safety Act (FRSA) and the Interstate Commerce Commission Termination Act (ICCTA).[66] Most notably, the railroads argued that the California law’s oil spill contingency planning requirements are preempted by the FRSA, and that the law’s financial responsibility requirements are preempted by the ITTCA.[67]

On June 18, 2015, the court granted the defendants’ motion to dismiss. The court refused to reach the merits of the case, finding instead that the dispute was not ripe for review. Specifically, the court found that because compliance with the forthcoming regulations would be within the plaintiff’s control, and because the lack of implementing regulations meant the railroads had not been coerced into compliance, the plaintiffs could not establish “a concrete plan to violate the law.”[68] Similarly, the court held that the plaintiffs failed to establish a genuine threat of prosecution, finding that letters from the state to the railroads discussing enforcement timelines were general statements, “not sufficiently imminent” threats.[69]

The railroads did not file a notice of appeal within the 30-day deadline. Because the Association of American Railroads decision rested on jurisdictional grounds, it offers limited insight into what a court hearing a challenge to Washington’s H.B. 1449 might do—beyond suggesting, of course, that parties interested in challenging the Washington law might do well to wait for a more direct threat of enforcement.

B. DOT Regulations Challenged From All Sides

PHMSA’s final Tank Car Rule has been challenged from all sides, both in federal courts and via agency appeal. Environmental groups and municipalities have criticized the rule as failing adequately to provide for the safe transportation of crude oil by rail. Petroleum industry groups, on the other hand, argue that the rule goes too far, especially with regard to its timeline for retrofitting cars currently in operation and imposing new braking requirements. Railroads fall somewhere in between, claiming that the rule both does too little (e.g., failing to require adequate thermal protection) and too much (e.g., requiring costly, untested braking technology). Tribal interests, meanwhile, argue that PHMSA did not properly consult with tribal governments, and ask that it reopen a notice and comment period in order to do so.

1. D.C. Circuit Appeals

Though the Tank Car Rule was challenged in a number of federal appellate courts, these petitions have been largely consolidated in the United States Court of Appeals for the District of Columbia Circuit.[70]

In the D.C. Circuit, environmental petitioners argue that several facets of the rule are the product of arbitrary and capricious decision-making:

  • The rule establishes “an unduly long phase-out period” for existing tank cars.
  • The rule permits un-retrofitted tank cars to transport crude oil in non-HHFTs indefinitely.
  • The rule “establishes a weaker standard for retrofits than that applicable to new tank cars.”
  • The rule applies its 40-mph speed limit too narrowly.
  • The final rule impermissibly abandoned the notice requirements of the May 2014 emergency order without giving interested parties proper notice or opportunity to comment.[71]

Municipalities such as the Village of Barrington, Illinois express similar concerns. They take issue, for example, with the fact that the rule applies only to tank cars in HHFTs, allowing older, arguably unsafe cars to transport crude oil indefinitely.[72] Similarly, they view the phase-out period for non-retrofitted tank cars used in HHFTs as “unreasonably long,” and argue that the final rule fails “to order railroads to provide real-time train consists to first responders when an accident occurs.”[73]

On the other end of the spectrum is the petition for review by the American Petroleum Institute, which finds fault in PHMSA’s timelines for retrofitting current tank cars and installing new braking systems, and with the agency’s treatment of cars and trains that do not meet new requirements.[74]

The American Short Line and Regional Railroad Association’s (ASLRRA) challenge falls somewhere in the middle. In the Tank Car Rule’s mandate for ECP brakes on certain HHFTs, the railroad group sees an expensive requirement to use an unproven technology that is beyond PHMSA’s statutory authority to impose.[75] At the same time, ASLRRA also argues that in other areas the final rule does not go far enough to protect safety, claiming that PHMSA acted arbitrarily and capriciously in failing to require enhanced thermal protection and in permitting the continued transportation of crude oil in un-retrofitted cars not part of HHFTs.[76]

2. Administrative Appeals

In addition to litigation in the DC Circuit, several organizations have administratively appealed the PHMSA rule pursuant to 49 C.F.R. § 106.110 et seq. Under this procedure, the appellant must explain “why compliance with the final rule is not practical, reasonable, or in the public interest.”[77]

As a preliminary matter, there does not appear to be a barrier to administrative appeals pursuant to 49 C.F.R. § 106.110 et seq proceeding simultaneously with appeals to the D.C. Circuit under 49 U.S.C. § 5127, as is currently the case. In Darby v. Cisneros,[78] the Supreme Court found that under the Administrative Procedure Act, courts may not impose exhaustion requirements where an agency action has become final unless a statute requires otherwise. While parties challenging the Tank Car Rule before the D.C. Circuit have done so under a different statute, there is no indication that 49 U.S.C. § 5127 would compel a different result. The Tank Car Rule is a final rule, and a PHMSA appeal typically “will not keep a final rule from becoming effective.”[79] Note, however, that environmental groups filed an administrative appeal,[80] but recently dismissed that appeal to remove potential jurisdictional obstacles to their D.C. Circuit petition.[81]

In its administrative appeal, the Association of American Railroads raises concerns about the tank car rule similar to those of ASLRRA, namely that the rule imposes an excessive and unnecessary regulatory burden in its ECP-braking requirements, and fails adequately to protect public safety by (1) failing to require enhanced thermal protection and (2) by allowing shippers to package crude oil in cars that do not meet new standards so long as they are not part of a HHFT.[82]

The American Fuel & Petrochemical Manufacturers (AFPM) also administratively appealed the DOT Rule. AFPM’s challenge is narrower, as the group contests only those provisions “that would prevent PHMSA from collecting the data needed to successfully determine if [] retrofit requirements remain achievable” during the currently-anticipated 10-year retrofit period.[83]

The Dangerous Goods Advisory Council (DGAC) offers a more sweeping—and unique—critique in its own appeal.[84] Most notably, while railroads, municipalities, and environmental groups have criticized the Tank Car Rule for failing to apply to all crude oil cars—not just those in HHFTs—DGAC argues that because shippers lack the ability to predict whether their tank cars will be assembled into HHFTs, the rule will “necessitate that all tank cars offered to the railroad” meet the requirements for HHFT tank cars.[85] The group also took issue with other Tank Car Rule provisions, including ECP-braking standards and speed limits.[86]

Finally, the Umatilla, Yakama, Warm Springs, and Nez Perce tribes administratively appealed the tank car rule, claiming that PHMSA both improperly removed the May 2014 emergency rule’s notice requirement and failed properly to consult with tribal governments as required by Executive Order 13175 and DOT’s own policies.[87]

Within 90 days of publication of the final Tank Car Rule, PHMSA will either render a decision or notify parties that its decision will be delayed.[88]

IV. Conclusion

Despite continued low oil prices and some decline in crude-by-rail shipping, the reality of oil trains—and potential for oil train derailments—appears here to stay for the foreseeable future. Federal and State regulators have acted to reduce the number and severity of tank car derailments, imposing a number of significant new requirements. But with this regulation comes inevitable litigation. Recent federal tank car standards are now being challenged both as too burdensome and not sufficiently protective of safety. State railroad legislation, meanwhile, raises the prospect of preemption challenges, despite the recent dismissal of the challenge to California’s oil train law on jurisdictional grounds.

For more on these issues, please contact Richard Allan.

[1] R. Allan, “Federal Agencies and States Pursue New Regulations for Oil Trains, Face Court Challenges,” Marten Law Environmental News (April 8, 2015).

[2] See Bloomberg Business, Energy and Oil (last visited July 22, 2015).

[3] See EIA, Cushing, OK WTI Spot Price FOB (last visited July 22, 2015).

[4] EIA, Weekly U.S. Field Production of Crude Oil (last visited July 22, 2015).

[5] See EIA, U.S. Field Production of Crude Oil (last visited July 22, 2015).

[6] See EIA, Short-Term Energy Outlook (last visited July 22, 2015).

[7] Associated Press, “North Dakota is Seeing Fewer Passenger and Freight Rail Delays Due to Drilling Decline,” (July 14, 2015).

[8] Id.

[9] EIA, Total Crude Oil by Rail (last visited July 22, 2015).

[10] Id.

[11] Associated Press, “BNSF Reopens Track at ND Site of Oil Train Derailment, Fire,” (May 8, 2015).

[12] Id. see also Associated Press, “Train Hauling Crude from ND Oil Patch Derails, Catches Fire,” (May 6, 2015).

[13] M. Brown and M. Volz, “35,000 Gallons of Oil Spills After Montana Train Derailment,” (July 17, 2015).

[14] Id.

[15] Id.

[16] See Press Release, DOT Announces Final Rule to Strengthen Safe Transportation of Flammable Liquids by Rail, (May 1, 2015).

[17] Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains, 80 Fed. Reg. 26644 (May 8, 2015).

[18] Id. at 26746 (to be codified at 49 C.F.R. § 171.8). As a result, the Tank Car Rule’s standards do not apply to crude oil shipped in trains with fewer than 35 total oil cars and with fewer than 20 oil cars in a continuous block.

[19] Id. at 26666 (to be codified at 49 C.F.R. §§ 171.7, 173.241, 173.242, 173.243, 179).

[20] See id. at 26669.

[21] Id. at 26675.

[22] http://www.phmsa.dot.gov/staticfiles/PHMSA/ImageCollections/Images/DOT_117_RAIL_CAR_043015_lowres_Red_rescue_original.jpg.

[23] See id. at 26676.

[24] Id. at 26678.

[25] Id. at 26649.

[26] Id. at 26680.

[27] See id. at 26682.

[28] Id. at 26682-83.

[29] Id. at 26692 (to be codified at 49 C.F.R. §§ 174.310 to 174).

[30] Id. at 26687.

[31] See id. at 26692.

[32] See id.

[33] See id. at 26692-93.

[34] See id. at 26693.

[35] See id.

[36] Id.

[37] Id. at 26692 (to be codified at 49 C.F.R. § 174.310(a)(3)).

[38] Id.

[39] Packing Group I represents the highest hazard level of Class III flammable liquids, and includes crude oil with an initial boiling point of 35 °C or less. 49 C.F.R. §§ 173.121; 172.101.

[40] 80 Fed. Reg. at 26692.

[41] Id. at 26709.

[42] See id. at 26709, 26713-14.

[43] PHMSA, Notice Regarding Emergency Response Notifications for Shipments of Petroleum Crude Oil by Rail (May 28, 2015) (emphasis omitted).

[44] 2015 WA H.B. 1449 § 8(1)(a).

[45] Id.

[46] Id. § 8(2).

[47] Id. § 8(3).

[48] Id. § 8(5).

[49] Id. § 24.

[50] Id. § 3(11); RCW 90.56.010(11)(a)

[51] 2015 WA H.B. 1449 § 3(11)(c). Note that that railroads qualify as “facilities” for the limited purpose of oil spill contingency planning (discussed below). Id. § 3(11)(b).

[52] See, for example, sections 3 and 12 of the H.B. 1449 read on February 19, 2015.

[53] 2015 WA H.B. 1449 § 10(1).

[54] Id. § 10(1)-(3).

[55] Id. § 5(1). Note that while railroads carrying crude require approved contingency plans, unlike other facilities, railroads are not required to prepare or submit oil spill prevention plans. Id. § 4(1), (3).

[56] Id.

[57] Id. § 5(3).

[58] Id. § 5(7).

[59] Id. § 5(8).

[60] RCW 90.56.270.

[61] First convictions are gross misdemeanors, punishable by up to 364 days in jail and a fine of not more than $5,0000. Second and subsequent convictions are class C felonies, punishable by up to five years imprisonment and a fine of $10,000. RCW 90.56.300.

[62] RCW 90.56.310.

[63] 2015 WA H.B. 1449 § 14(1)-(2).

[64] Id. § 18.

[65] 2:14-CV-02354-TLN, 2015 WL 3828261 (E.D. Cal. June 18, 2015).

[66] For a discussion of the arguments the parties raised, see R. Allan, “Federal Agencies and States Pursue New Regulations for Oil Trains, Face Court Challenges,” Marten Law Environmental News (April 8, 2015).

[67] 2015 WL 3828261 at *1.

[68] Id. at *4-5.

[69] Id. at *5.

[70] See American Petroleum Institute v. United States, No. 15-1131 (D.C. Cir. May 11, 2015).

[71] See Petition for Review at 2-4, Sierra Club v. Secretary of Transportation, No. 15-1199 (D.C. Cir, June 30, 2015).

[72] Petitioners’ Statement of Issues at 2, Village of Barrington, IL v. United States, No 15-1182 (D.C. Cir, July 1, 2015).

[73] Id.

[74] Petition for Review at 2-3, American Petroleum Institute v. United States, No. 15-1131 (D.C. Cir. May 11, 2015).

[75] ASLRRA’s Statement of Issues at 1-2, American Petroleum Institute v. United States, No. 15-1131 (D.C. Cir. June 17, 2015).

[76] Id. at 3.

[77] 49 C.F.R. § 106.115.

[78] 509 U.S. 137, 154 (1993).

[79] 49 C.F.R. § 106.130. Cf. Darby, 509 U.S. at 154(under Administrative Procedure Act, “an appeal to ‘superior agency authority’ is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review”).

[80] Earthjustice Appeal of Tank Car Rule, No. PHMSA-2012-0082 (June 4, 2015).

[81] Earthjustice Withdrawal of Administrative Appeal, No. PHMSA-2012-0082 (June 12, 2015).

[82] Association of American Railroads Appeal of Tank Car Rule at 2-6, No. PHMSA-2012-0082 (June 12, 2015).

[83] American Fuel & Petrochemical Manufacturers Appeal of Tank Car Rule at 1, No. PHMSA-2012-0082 (June 5, 2015).

[84] Dangerous Goods Advisory Council Appeal of Tank Car Rule, No. PHMSA-2012-0082 (June 5, 2015).

[85] Id. at 2.

[86] Id. at 5-6.

[87] Tribal Governments Appeal of Tank Car Rule at 1, No. PHMSA-2012-0082 (June 5, 2015).

[88] 49 C.F.R. § 106.130.


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