In response to recent derailments of trains transporting crude, the Department of Transportation issued an emergency order pursuant to its regulatory authority over the transportation of hazardous materials. The order applies to all carriers that transport a single train within the United States carrying 1 million gallons or more of UN 1267, Petroleum crude oil, Class 3, sourced from the Bakken shale formation. Under this order, a qualifying carrier must notify a State Emergency Response Commission prior to transporting Bakken crude in any state and provide specific information regarding the shipment.

The notification must contain five elements: (1) a “reasonable estimate” of the number of trains that are expected to travel per week through each county within the state; (2) the identity and description of the petroleum crude oil expected to be transported in accordance with 49 CFR part 172, subpart C; (3) all applicable emergency response information required by 49 CFR part 172, subpart G; (4) the routes over which the crude oil will be transported; and (5) a point of contact at the railroad responsible for serving as the emergency responder. The order requires that notification be provided within 30 days of the issuance of the order, or by approximately June 6.  If notice is not provided, a railroad is prohibited from operating any train transporting 1 million gallons or more of Bakken crude oil until such notice is provided.The order also requires a railroad carrier to update its “reasonable estimate” of the number of anticipated railcars whenever a the estimated amount increases or decreases significantly (defined as 25% or more). A significant change is equivalent to a 25% increase or decrease in the expected number of trains per week.

The Federal Railroad Administration will seek to enforce this order through audits of the notices provided to the State Emergency Response Commissions to ensure notice is being provided and the information in the notice is accurate. A failure to comply with the order may result in civil penalties of up to $175,000 for each violation or for each day a railroad is found to be in violation. Criminal penalties are also possible where violations of the order are willful or reckless.