[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Notices]
[Pages 29511-29528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10381]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2019-0149; PD-40(R)]


Hazardous Materials: The State of Washington Crude Oil by Rail 
Volatility Requirements

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of Administrative Determination of Preemption.

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    Applicants: The State of North Dakota and the State of Montana 
(Applicants).
    Local Law Affected: Revised Code of Washington (RCW), Title 90, 
Chapter 90.56, Section 90.56.565 (2015), as amended; Section 90.56.580 
(2019).
    Applicable Federal Requirements: Federal Hazardous Material 
Transportation Law (HMTA), 49 U.S.C. 5101 et seq., and the Hazardous 
Materials Regulations (HMR), 49 CFR parts 171-180.
    Mode Affected: Rail.
SUMMARY: PHMSA finds that the HMTA preempts Washington State's vapor 
pressure limit for crude oil loaded or unloaded from rail tank cars, 
for three reasons. First, the vapor pressure requirement constitutes a 
scheme for classifying a hazardous material that is not substantively 
the same as the HMR. Second, the vapor pressure requirement imposes 
requirements on the handling of a hazardous material that are not 
substantively the same as the requirements of the HMR. Third, PHMSA has 
determined that the vapor pressure requirement is an obstacle to 
accomplishing and carrying out the HMTA.
    In addition, PHMSA finds that the administrative record regarding 
Washington State's Advance Notice of Transfer (ANT) requirement is 
insufficient to make a determination whether the requirement is 
preempted under the HMTA.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief 
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590; Telephone No. 202-366-4400; Facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION:

I. Application

    The Applicants have applied to PHMSA for a determination as to 
whether the HMTA, 49 U.S.C. 5101 et seq., preempts the State of 
Washington's requirements for crude oil vapor pressure and advance 
notice of transfer for facilities that receive crude oil from a 
railroad car (hereinafter referred to as Washington's vapor pressure 
law or VPL). Specifically, the Applicants allege the law, which 
purports to regulate the volatility of crude oil loaded or unloaded 
from rail cars in Washington State, amounts to a de facto ban on Bakken 
\1\ crude.
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    \1\ According to the Applicants, North Dakota and Montana are 
home to the Bakken Shale Formation, a subsurface formation within 
the Williston Basin. It is one of the top oil-producing regions in 
the country and one of the largest oil producers in the world.
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    The Applicants present several arguments for why they believe 
Washington's law should be preempted. First, the Applicants contend 
that the law's prohibition on the loading or unloading of crude oil 
registering a vapor pressure greater than 9 pounds per square inch 
(psi) poses obstacles to the HMTA because compliance with the law can 
only be accomplished by (1) pretreating the crude oil prior to loading 
the tank car; (2) selecting an alternate mode of transportation; or (3) 
redirecting the crude oil to facilities outside of Washington State. 
Accordingly, North Dakota and Montana say these avenues for complying 
with the law impose obstacles to accomplishing the purposes of the 
HMTA. Similarly, they contend that the law's advance notice of transfer 
requirement is an additional obstacle.

[[Page 29512]]

Lastly, North Dakota and Montana contend that Washington State's law is 
preempted because aspects of the law are not substantively the same as 
the Federal requirements for the classification and handling of this 
type of hazardous material.
    In summary, the Applicants contend the State of Washington's vapor 
pressure law should be preempted because:
     It is an obstacle to the Federal hazardous material 
transportation legal and regulatory regime; and
     It is not substantively the same as the Federal 
regulations governing the classification and handling of crude oil in 
transportation.
    PHMSA published notice of the application in the Federal Register 
on July 24, 2019. 84 FR 35707. Interested parties were invited to 
comment on the application. We granted a request by the State of 
Washington to extend the original 30-day comment period. The initial 
comment period closed on September 23, 2019, followed by a rebuttal 
comment period that remained open until October 23, 2019. PHMSA 
received 4,118 comments during the initial comment period, and another 
279 comments were submitted during the rebuttal comment period. 
Generally, the comments fall into six categories representing a broad 
array of stakeholders, including refineries and oil producers, industry 
groups, governmental entities, environmental groups, Members of 
Congress, and other interested members of the public. The comments are 
summarized in Part V below.

II. Preemption Under Federal Hazardous Material Transportation Law

Preemption Standards

    The HMTA has strong preemption provisions that allow the Secretary 
of Transportation (Secretary), upon request, to make a preemption 
determination as to a non-Federal requirement. 49 U.S.C. 5125 contains 
express preemption provisions relevant to Washington State's vapor 
pressure law. Subsection (a) provides that a requirement of a State, 
political subdivision of a State, or Indian tribe is preempted--unless 
the non-Federal requirement is authorized by another Federal law or the 
Department of Transportation (Department or DOT) grants a waiver of 
preemption under 5125(e)--if:

    (1) Complying with a requirement of the State, political 
subdivision, or tribe and a requirement of this chapter, a 
regulation prescribed under this chapter, or a hazardous materials 
transportation security regulation or directive issued by the 
Secretary of Homeland Security is not possible; or
    (2) the requirement of the State, political subdivision, or 
tribe, as applied or enforced, is an obstacle to accomplishing and 
carrying out this chapter, a regulation prescribed under this 
chapter, or a hazardous materials transportation security regulation 
or directive issued by the Secretary of Homeland Security.\2\
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    \2\ These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that are based on U.S. Supreme Court decisions 
on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime 
& Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. 
Atlantic Richfield, Inc., 435 U.S. 151 (1978). PHMSA's predecessor 
agency, the Research and Special Programs Administration, applied 
these criteria in issuing inconsistency rulings under the original 
preemption provisions in Section 112(a) of the Hazardous Materials 
Transportation Act, Public Law 93-633, 88 Stat. 2161 (Jan. 3, 1975).

    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same'' as a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by the Department of Homeland 
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Security:

    (A) The designation, description, and classification of 
hazardous material.
    (B) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material and 
other written hazardous materials transportation incident reporting 
involving State or local emergency responders in the initial 
response to the incident.
    (E) the designing, manufacturing, fabricating, inspecting, 
marking, maintaining, reconditioning, repairing, or testing a 
package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material in commerce.\3\
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    \3\ To be ``substantively the same,'' the non-Federal 
requirement must conform ``in every significant respect to the 
Federal requirement. Editorial and other similar de minimis changes 
are permitted.'' 49 CFR 107.202(d).

    The preemption provisions in 49 U.S.C. 5125 reflect Congress's 
long-standing view that a single body of uniform Federal regulations 
promotes safety (including security) in the transportation of hazardous 
materials. Some forty years ago, when considering the Hazardous 
Materials Transportation Act, the Senate Commerce Committee 
``endorse[d] the principle of preemption in order to preclude a 
multiplicity of State and local regulations and the potential for 
varying as well as conflicting regulations in the area of hazardous 
materials transportation.'' S. Rep. No. 1192, 93rd Cong. 2nd Sess. 37 
(1974). A United States Court of Appeals has found uniformity was the 
``linchpin'' in the design of the Federal laws governing the 
transportation of hazardous materials.\4\
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    \4\ Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 
(10th Cir. 1991).
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Administrative Determination of Preemption

    Under 49 U.S.C. 5125(d)(1), any person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or Indian tribe may 
apply to the Secretary of Transportation for a determination whether 
the requirement is preempted. The Secretary of Transportation has 
delegated authority to PHMSA to make determinations of preemption.\5\ 
Alternatively, a person may seek a decision on preemption from a court 
of competent jurisdiction instead of applying to PHMSA. However, once 
an application is filed with the agency, an applicant may not seek 
judicial relief with respect to the same, or substantially the same 
issue, until the agency has taken final action on the application or 
180 days after filing the application.\6\
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    \5\ 49 CFR 1.97(b).
    \6\ 49 U.S.C. 5125(d); 49 CFR 107.203(d).
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    Section 5125(d)(1) requires notice of an application for a 
preemption determination to be published in the Federal Register. 
Following the receipt and consideration of written comments, PHMSA 
publishes its determination in the Federal Register.\7\ A short period 
of time is allowed for filing of petitions for reconsideration.\8\ A 
petition for judicial review of a final preemption determination must 
be filed in the United States Court of Appeals for the District of 
Columbia or in the Court of Appeals for the United States for the 
circuit in which the petitioner resides or has its principal place of 
business, within 60 days after the determination becomes final.\9\
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    \7\ 49 CFR 107.209(c).
    \8\ 49 CFR 107.211.
    \9\ 49 U.S.C. 5127(a).
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    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution, or statutes other than the

[[Page 29513]]

Federal hazardous material transportation law, unless it is necessary 
to do so in order to determine whether a requirement is authorized by 
another Federal law, or whether a fee is ``fair'' within the meaning of 
49 U.S.C. 5125(f)(1). A State, local or Indian tribal requirement is 
not authorized by another Federal law merely because it is not 
preempted by another Federal statute.\10\ In addition, PHMSA does not 
generally consider issues regarding the proper application or 
interpretation of a non-Federal regulation, but rather how such 
requirements are actually ``applied or enforced.'' Thus, ``isolated 
instances of improper enforcement (e.g., misinterpretation of 
regulations) do not render such provisions inconsistent'' with the 
Federal hazardous material transportation law, but are more 
appropriately addressed in the appropriate State or local forum.\11\
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    \10\ Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 
1581 n.10.
    \11\ Preemption Determination (PD)-14(R), Houston, Texas, Fire 
Code Requirements on the Storage, Transportation, and Handling of 
Hazardous Materials, 63 FR 67506, 67510 n.4 (Dec. 7, 1998), decision 
on petition for reconsideration, 64 FR 33949 (June 24, 1999), 
quoting from IR-31, Louisiana Statutes and Regulations on Hazardous 
Materials Transportation, 55 FR 25572, 25584 (June 21, 1990), appeal 
dismissed as moot, 57 FR 41165 (Sept. 9, 1992), and PD-4(R), 
California Requirements Applicable to Cargo Tanks Transporting 
Flammable and Combustible Liquids, 58 FR 48940 (Sept. 20, 1993), 
decision on reconsideration, 60 FR 8800 (Feb. 15, 1995).
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III. The Washington State Requirements

    For our purposes here, the relevant language of the law includes a 
new section added to RCW, Chapter 90.56 to read:

    (1)(a) A facility constructed or permitted after January 1, 
2019, may not load or unload crude oil into or from a rail tank car 
unless the oil has a vapor pressure of less than nine pounds per 
square inch.
    (b) A facility may not load or unload crude oil into or from a 
rail tank car unless the oil has a vapor pressure of less than nine 
pounds per square inch beginning two years after the volume of crude 
oil transported by rail to the facility for a calendar year as 
reported under RCW 90.56.565 has increased more than ten percent 
above the volume reported for calendar year 2018.
    (2) The director may impose a penalty of up to twenty-five 
hundred dollars per day per rail tank car or the equivalent volume 
of oil for violations of this section. Any penalty recovered 
pursuant to this section must be credited to the coastal protection 
fund created in RCW 90.48.390.
    (3) This section does not: (a) Prohibit a railroad car carrying 
crude oil from entering Washington; (b) require a railroad car 
carrying crude oil to stop before entering Washington; or (c) 
require a railroad car carrying crude oil to be checked for vapor 
pressure before entering Washington.

RCW 90.56.580 (as amended).
    In addition, RCW 90.56.565 was amended to read, in part:

    (1)(a) A facility that receives crude oil from a railroad car 
must provide advance notice to the department that the facility will 
receive crude oil from a railroad car, as provided in this section. 
The advance notice must include the route taken to the facility 
within the state, if known, and the scheduled time, location, 
volume, region per bill of lading, type, vapor pressure, and gravity 
as measured by standards developed by the American petroleum 
institute, of crude oil received. Each week, a facility that 
provides advance notice under this section must provide the required 
information regarding the scheduled arrival of railroad cars 
carrying crude oil to be received by the facility in the succeeding 
seven-day period. A facility is not required to provide advance 
notice when there is no receipt of crude oil from a railroad car 
scheduled for a seven-day period.
* * * * *
    (4) To further strengthen rail safety and the transportation of 
crude oil, the department must provide to the utilities and 
transportation commission data reported by facilities on the 
characteristics, volatility, vapor pressure, and volume of crude oil 
transported by rail, as required under subsection (1)(a) of this 
section. . . .

RCW 90.56.565 (as amended) (emphasis added).

IV. Background Information

A. Vapor Pressure

No Federal Vapor Pressure Standard
    The HMR requirements for the classification of unrefined petroleum-
based products include the proper classification, determination of an 
appropriate packing group, and selection of a proper shipping name and 
description of the material. The HMR contain detailed rules that guide 
an offeror through each of these steps in the classification process. 
See generally, 49 CFR 172.101 (The Hazardous Materials Table), 173.2-
173.41; 173.120, 173.121, 173.150, 173.242, 173. 243, and Part 174 
(Railroads). However, as explained further below, there is not a 
Federal vapor pressure standard for the classification process for 
unrefined petroleum-based products, such as crude oil.
North Dakota Industrial Commission Order
    In December 2014, the North Dakota Industrial Commission adopted 
new conditioning standards for the transport of Bakken crude oil, 
stating safety as its rationale. The NDIC Order (Order) sets forth 
operating standards guiding the use of conditioning equipment to 
separate production fluids into gas and liquid components. The new 
standard requires North Dakota operators to condition Bakken crude oil 
to a vapor pressure of no more than 13.7 psi. The Order requires the 
operators to separate light hydrocarbons from all Bakken crude oil to 
be transported and prohibits the blending of light hydrocarbons back 
into oil supplies prior to shipment. The NDIC, in setting the State of 
North Dakota's vapor pressure limit at 13.7 psi, noted that standards-
setting organizations set crude oil stability at a vapor pressure of 
14.7 psi.\12\
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    \12\ Commenters have suggested that since we are addressing the 
State of Washington's ability to set its own vapor pressure limit, 
we must also address the State of North Dakota's vapor pressure 
limit. However, the NDIC conditioning standard is not the vapor 
pressure requirement that is the subject of this preemption matter. 
Therefore, it is beyond the scope of this proceeding.
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DOT's High-Hazard Flammable Train Rule
    On May 8, 2015, PHMSA, in coordination with FRA, published the HHFT 
final rule to codify requirements to reduce the consequences and 
probability of accidents involving trains transporting large quantities 
of Class 3 flammable liquids.\13\ PHMSA, in the Notice of Proposed 
Rulemaking (NPRM), indicated that the properties of unrefined 
petroleum-based products, including crude oil, are variable based on 
time, method, and location of extraction. As such, organic materials 
from oil and gas production represent a unique challenge regarding 
classification. At that time, the agency also sought public comments on 
the role of vapor pressure in classifying flammable liquids and 
selecting packaging, and asked whether vapor pressure thresholds should 
be established.\14\ In the final rule, PHMSA took a system-wide 
comprehensive approach to rail safety commensurate with the risks 
associated with HHFTs. For example, the final rule adopted several 
operational requirements relating to speed restrictions, braking 
systems, and routing. It also adopted safety improvements in tank car 
design standards and notification requirements. And, to ensure the 
proper classification of unrefined petroleum products, a new regulatory 
requirement for a sampling and testing program was added to the HMR.
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    \13\ Hazardous Materials: Enhanced Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains, 80 FR 26643 
(May 8, 2015).
    \14\ Hazardous Materials: Enhanced Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains, 79 FR 45015 
(August 1, 2014).
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    Under the HMR, it is the responsibility of the offeror to ensure 
hazardous materials are properly

[[Page 29514]]

classified.\15\ PHMSA, in the HHFT final rule, stressed the offeror's 
responsibility to classify and describe properly a hazardous material 
when the agency decided to impose a regulation requiring a sampling and 
testing program for unrefined petroleum-based products.\16\ However, 
PHMSA did not adopt any other changes related to vapor pressure. For 
example, the agency did not mandate specific sampling and testing for 
measuring vapor pressure; it chose not to set a Federal vapor pressure 
standard; and lastly, it decided against requiring pre-treatment or 
conditioning of crude oil to meet a vapor pressure standard before the 
material is offered for transportation. Notwithstanding the fact that 
PHMSA did not adopt any specific requirements related to vapor 
pressure, the agency indicated its willingness to continue examining 
the role of vapor pressure in the proper classification of crude oils 
and other flammable liquids, but cautioned that any specific regulatory 
changes related to vapor pressure would be informed by current and 
future research, as well as rulemaking procedures to the extent 
regulatory action is deemed necessary.
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    \15\ 49 CFR 173.22.
    \16\ 49 CFR 173.41.
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New York State Office of the Attorney General Petition and ANPRM
    Subsequent to the publication of the HHFT final rule, and despite 
the operational and safety improvements codified in the rule, the New 
York State Office of the Attorney General (NYSOAG) petitioned PHMSA to 
establish a Federal vapor pressure limit for crude oil transported by 
rail. According to NYSOAG, the rule did not address the primary cause 
of the large explosions and uncontrollable fires from a series of train 
accidents involving Bakken crude oil--the volatility of crude oil 
itself--due to the abundance of combustible gases within the petroleum 
products. PHMSA received NYSOAG's petition on December 1, 2015. The 
rulemaking petition requested that PHMSA establish a vapor pressure 
limit of less than 9 psi for crude oil transported by rail. The 
petition was based on the premise that limiting the material's vapor 
pressure would reduce the risk of death or damage from fire or 
explosion in the event of an accident.
    On January 18, 2017, PHMSA issued an ANPRM \17\ to help the agency 
assess the merits of prescribing vapor pressure limits for crude oil. 
PHMSA, in the ANPRM, asked a series of questions seeking input as to 
whether there should be national vapor pressure thresholds for 
petroleum products. The comment period for the ANPRM closed on May 19, 
2017.
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    \17\ Hazardous Materials: Volatility of Unrefined Petroleum 
Products and Class 3 Materials, 82 FR 5499 (January 18, 2017).
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Crude Oil Characteristics Research (Sandia Study)
    In 2014, the Department, the U.S. Department of Energy (DOE), and 
Transport Canada (TC) commissioned a review of the chemical and 
physical properties of tight \18\ crude oils in order to understand 
whether these properties could contribute to an increased potential for 
accidental combustion. Vapor pressure was one of the specific 
properties the two Federal agencies targeted for research and analysis. 
Sandia National Laboratories (Sandia) was commissioned to conduct an 
extensive review and analysis, focusing specifically on crude oil's 
potential for ignition, combustion, and explosion. The review 
encompassed a wide-ranging examination of domestic crude oil samples 
varying by type, location, sampling method, and analytical method. DOT, 
DOE, and TC authorized additional research and undertook a multi-phase 
deliberative approach for examining the characteristics of various 
crude oils from around the country. The final plan was authorized and 
provided for a four-phase study entitled, the Sampling, Analysis, and 
Experiment (SAE) plan.
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    \18\ Tight oil is oil produced from petroleum-bearing formations 
with low permeability such as the Eagle Ford, the Bakken, and other 
formations that must be hydraulically fractured to produce oil at 
commercial rates. Shale is a subset of tight oil. U.S. Energy 
Information Administration, https://www.eia.gov/tools/glossary/?id=t 
(last visited February 11, 2020).
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    The SAE plan consisted of a set of tasks intended to further 
evaluate sampling methods; identify and evaluate crude oil chemical and 
physical properties; and engage in data collection and analysis. Tasks 
1, 2, and 3 of the plan have been completed: Task 1 consisted of a 
review and evaluation of new and emerging crude oil characterization 
data; Task 2 entailed an evaluation of oil sampling methods; Task 3 
included combustion experiments and modeling to assess combustion 
hazards associated with tight and conventional crude oils.
    Sandia published its report of the results of Task 3 on August 24, 
2019.\19\ The report described the pool fire and fireball experiments 
Sandia conducted on three different North American crude oil samples 
(including a sample from the Bakken region) to study the physical, 
chemical, and combustion characteristics of the samples, and how these 
characteristics associate with thermal hazard distances that may be 
realized in the event of a transportation accident involving a crude 
oil fire. In short, the primary conclusion reached from the study was 
as follows:
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    \19\ https://www.osti.gov/biblio/1557808-pool-fire-fireball-experiments-support-us-doe-dot-tc-crude-oil-characterization-research-study.

    The similarity of pool fire and fireball burn characteristics 
pertinent to thermal hazard outcomes of the three oils studied 
indicate that vapor pressure is not a statistically significant 
factor in affecting these outcomes. Thus, the results from this work 
do not support creating a distinction for crude oils based on vapor 
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pressure with regards to these combustion events.

    In light of this conclusion, the Department, DOE, and TC agreed 
that additional data collection, the key focus of Task 4 of the SAE 
Plan, would not be necessary since the Task 3 results provided a 
scientific and evidentiary basis for evaluating the effects of vapor 
pressure as it relates to the safe transportation of crude oil by rail. 
As such, the sponsoring agencies officially deemed the publication of 
the Task 3 Report as the final stage of the SAE plan, thereby 
completing the Sandia Study. DOE submitted a Report to Congress in 
April 2020.\20\
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    \20\ www.energy.gov/fe/report-congress-crude-oil-characterization-research-study.
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ANPRM Withdrawal
    PHMSA, after closely examining the results and conclusions of the 
Sandia Study, and in consideration of the public comments to the ANPRM 
from industry, stakeholders, and other interested parties, determined 
that issuing any regulation setting a vapor pressure limit for 
unrefined petroleum-based products is not justified, reasoning that 
such a regulation would not lessen risks associated with transporting 
crude oil by rail.
    Furthermore, the agency determined that establishing a vapor 
pressure limit would unnecessarily impede transportation without 
providing justifiable benefits. Therefore, on May 11, 2020, the agency 
withdrew the January 18, 2017 ANPRM because it determined that the 
current classification provisions of the HMR adequately address the 
known hazards of Class 3 flammable liquids, including unrefined 
petroleum-based products, such as crude oil. Furthermore, the agency 
found that a regulation setting a national vapor pressure limit for 
these materials is neither necessary nor appropriate.\21\
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    \21\ PHMSA has submitted a Notice of the ANPRM Withdrawal to the 
Office of the Federal Register for official publication. However, 
there may be a delay in the publication of the Notice in the Federal 
Register. Therefore, PHMSA has issued the Notice on the PHMSA 
website and posted it to the docket on the Regulations.gov website 
(https://www.regulations.gov/docket?D=PHMSA-2016-0077). Although 
PHMSA has taken steps to ensure the accuracy of the version of the 
Notice posted on the PHMSA website and in the docket, it is not the 
official version. Please refer to the official version in a 
forthcoming Federal Register publication, which will appear on the 
websites of each of the Federal Register (https://www.federalregister.gov/) and the Government Printing Office 
(www.govinfo.gov). After publication in the Federal Register, the 
unofficial Notice will be removed from PHMSA's website and replaced 
with a link to the official version published in the Federal 
Register. PHMSA will also post the official version in docket no. 
PHMSA-2016-0077.

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[[Page 29515]]

    In light of the above summary of the regulatory and research 
activities concerning vapor pressure, PHMSA, with its withdrawal of the 
ANPRM, has now concluded that there is no scientific or evidentiary 
basis for regulating the vapor pressure of unrefined petroleum-based 
products, including crude oil. And although many of the commenters in 
this proceeding have referred to the State of North Dakota's vapor 
pressure standard as the ``de facto national'' standard, this 
characterization is entirely misplaced given that NDIC's vapor pressure 
regulation is a State-adopted standard that could also be subject to a 
preemption challenge.

B. Advanced Notification of Transportation

    The HMTA and HMR prescribe the information and documentation 
requirements for the safe transportation of hazardous materials. This 
includes the preparation, execution, and use of shipping documents. 
Under the HMR, offerors of a hazardous material for transportation are 
required to prepare a shipping paper (to accompany the material while 
it is in transportation) with information describing the material, 
including the proper shipping name, hazard class or division number, 
and packing group, as determined by the regulations. Emergency response 
information is also required. Historically, in general, with the 
exception of radioactive materials, the Federal rules do not require 
additional information, documentation, or advance notification for the 
transportation of hazardous materials.
    On May 7, 2014, the Department issued an Emergency Order requiring 
that each railroad carrier provide the State Emergency Response 
Commission (SERC) for each State in which it operates trains 
transporting one million gallons or more of Bakken crude oil, including 
information regarding the expected movement of such trains through the 
counties in the State. The notification must provide information 
regarding the estimated volumes and frequencies of train traffic. The 
notification must also provide a reasonable estimate of the number of 
trains that are expected to travel, per week, through each county, and 
the expected transportation routes; a description of the petroleum 
crude oil and all emergency response information, each in accordance 
with the requirements in the HMR; and contact information for at least 
one point of contact at the railroad. The railroad must update the 
notifications when there is a material change (any increase or decrease 
of twenty-five percent or more) in the volume of those trains.
    PHMSA, in the NPRM for the HHFT rulemaking, proposed to codify and 
clarify the requirements in the Emergency Order. However, based on the 
comments received on the proposed notification requirement, the agency 
did not codify the notification requirements from the Emergency Order. 
Rather, it elected to amend the existing planning requirements for 
transportation by rail to include HHFT trains. The agency reasoned that 
relying on the existing route analysis and consultation requirements of 
section 172.820 would provide for consistency of notification 
requirements for rail carriers transporting crude oil by seamlessly 
integrating HHFT trains within the existing hazardous materials 
regulatory scheme.
    Thereafter, Congress enacted the FAST Act \22\ which included a 
mandate for the Department to promulgate regulations requiring advance 
notification consistent with the notification requirements of the May 
7, 2014, Emergency Order. As such, PHMSA proposed, and ultimately 
codified those requirements in the Oil Spill Response Plan (OSPR) 
rulemaking.\23\ The new provision, Section 174.312, specifies that HHFT 
information sharing notification must include: (1) A reasonable 
estimate of the number of HHFTs that the railroad expects to operate 
each week, through each county within the State or through each tribal 
jurisdiction; the routes over which the HHFTs will operate; (2) a 
description of the hazardous material being transported and all 
applicable emergency response information required by subparts C and G 
of part 172; (3) at least one point of contact at the railroad with 
knowledge of the railroad's transportation of affected trains; and (4) 
if the route is subject to oil spill response plan requirements, the 
notification must include a description of the response zones and 
contact information for the qualified individual and alternate. 
Railroads are required to update the notifications for changes in 
volume greater than twenty-five percent.
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    \22\ Public Law 114-94, 129 Stat. 1312, (December 4, 2015) 
Effective Date: October 1, 2015.
    \23\ Hazardous Materials: Oil Spill Response Plans and 
Information Sharing for High-Hazard Flammable Trains (FAST Act), HM-
251B, NPRM 81 FR 50068 (July 29, 2016); FR 84 FR 6910 (February 28, 
2019).
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    In the final rule, the agency stated that adding these new HHFT 
information sharing requirements build upon the information sharing 
framework for HHFTs that were initiated at the same time as the HHFT 
rulemaking amendments. The agency noted that together, these 
requirements will enable the railroads to work with State officials to 
ensure that safety and security planning is occurring. The notification 
requirements adopted in the HHFT and OSRP final rules are important 
components of the Department's overall comprehensive approach to 
ensuring the safe transportation of energy products.

V. Summary and Discussion of the Public Comments

    PHMSA received 4,118 comments during the initial comment period, 
and another 279 comments were submitted during the rebuttal comment 
period. Generally, there are six categories of commenters representing 
a broad array of stakeholders, including refineries and oil producers, 
industry groups, governmental entities, environmental groups, Members 
of Congress, and other interested members of the public. Of the 
substantive comments received, the majority came from industry 
groups.\24\ Several refineries and oil producers also submitted 
comments.\25\
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    \24\ 11 industry groups submitted individual comments, 
including: American Chemistry Council; American Fuel & Petrochemical 
Manufacturers; American Petroleum Institute; the Chlorine Institute; 
Dangerous Goods Advisory Council; International Liquid Terminals 
Association; North Dakota Petroleum Council; Railway Supply 
Institute; Western Independent Refiners Association; and Western 
States Petroleum Association. In addition, the Association of 
American Railroads, the American Short Line & Regional Railroad 
Association, and BNSF Railway Company submitted a joint comment.
    \25\ Of the five refineries located in Washington State, four of 
the refinery operators submitted comments: BP America; Hess 
Corporation; Marathon Petroleum Corporation; and Phillips 66 
Company. Also, two oil producers submitted comments: Continental 
Resources and Crestwood Midstream Partners LP.
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    State and local governments also submitted comments, both in favor 
of and against preemption of the Washington State law. The North Dakota 
Department of Agriculture and the Governor of North Dakota each

[[Page 29516]]

submitted a comment in favor of preemption. Also, the Attorneys General 
of Oklahoma, Arkansas, Indiana, Louisiana, Nebraska, Ohio, South 
Dakota, Utah, West Virginia, and Wyoming (AG Alliance for Preemption) 
wrote a joint comment in favor of preemption.\26\ The Attorney General 
(AG) of Washington and the Spokane City Council each submitted a 
comment arguing against preemption.
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    \26\ On December 16, 2019, The AG of Texas sent a letter to 
PHMSA's Chief Counsel endorsing the views expressed in the comments 
previously filed in the proceeding by the Attorneys General of 
Oklahoma, Arkansas, Indiana, Louisiana, Nebraska, Ohio, South 
Dakota, Utah, West Virginia, and Wyoming. The letter, and PHMSA's 
response, have been uploaded to the proceeding's docket.
---------------------------------------------------------------------------

    A joint comment was submitted by eight environmental and public 
interest groups, led by Earthjustice.\27\ There were many comments 
submitted by individuals; the vast majority of which were variations of 
the same form letter.\28\ In addition, 32 Members of Congress wrote to 
the Secretary and the PHMSA Administrator urging preemption.
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    \27\ The environmental and public interest groups, included 
Earthjustice, the Washington Environmental Council, Columbia 
Riverkeeper, Friends of the Earth, the Lands Council, Friends of the 
San Juans, Friends of the Columbia Gorge, and Oregon Physicians for 
Social Responsibility.
    \28\ During the initial comment period, there were 3,737 form 
letters from 2,963 discrete commenters. There were also 59 comments 
from private citizens that were not form letters. During the 
rebuttal comment period, there were 268 form letters from 264 
discrete commenters, as well as one comment from a private citizen 
that was not a form letter. After the rebuttal period closed, 
another 6 form letters were submitted from 5 discrete commenters.
---------------------------------------------------------------------------

    Five substantive rebuttal comments were submitted during the 
rebuttal comment period. The AG of Washington submitted a rebuttal 
comment against a finding of preemption. A joint rebuttal comment was 
also submitted against preemption from the Attorneys General of New 
York, California, Maryland, and New Jersey (AG Alliance against 
Preemption).
    Three rebuttal comments were in favor of preemption. The API and 
the AFPM each submitted a rebuttal comment. The Applicants also 
submitted rebuttal comments.
    The substantive comments are organized by topic and discussed in 
the following sections.

A. Comments Supporting Preemption

Goal and Purpose of the HMTA
    Many of the commenters express concern about the precedent 
Washington State's law could set by undermining the HMTA's national 
scheme of uniform regulation. For example, Hess Corporation (Hess) 
points out that the original intent of the HMTA was to preclude a 
multiplicity of State and local regulations, and the potential for 
varying as well as conflicting regulations. Hess argues that while some 
States might believe their particular rules would be safer than those 
set forth by the HMTA or the HMR, Congress specifically rejected a 
State-by-State regulatory scheme in light of its determination that 
national uniformity ensures better safety than a patchwork of State and 
local laws of varying scope and degree.
    Many of the commenters agree that uniformity is the cornerstone of 
Federal hazardous materials policy, rules, and regulation, because it 
fosters stability and ensures hazardous materials are transported 
efficiently and without unnecessary delay. The commenters on this topic 
all agree that the State of Washington's law violates the nation's 
scheme of uniform regulation for the transportation of hazardous 
materials.
    Furthermore, most of the commenters agree that a piecemeal, or 
patchwork of State-by-State regulations is untenable. Crestwood 
Midstream Partners LP (Crestwood) envisions a system of regulatory 
arbitrage where without uniform standards, hazmat (hazardous materials) 
carriers will be forced to choose routes that avoid jurisdictions with 
expensive or burdensome compliance requirements. The Railway Supply 
Institute's Committee on Tank Cars (RSI-CTC) imagines a scenario where 
all fifty States require different equipment for transporting hazardous 
materials to and from their States, or imposing different 
classification restrictions on crude oil, ethanol, and other critical 
commodities.
    Thus, the commenters overwhelmingly express concern that the law, 
if allowed to stand, would encourage other States to impose their own 
restrictions and requirements, creating a patchwork of requirements 
applicable to crude oil transport and handling, an outcome that 
undermines the uniform, comprehensive Federal regulatory framework that 
Congress sought to advance under the HMTA.
    Marathon Petroleum Corporation (Marathon) asserts that the law 
undermines the validity of the unified Federal regime governing hazmat 
transportation, and upends the justified reliance on this regime by 
companies, like itself, that have invested heavily in their operations 
to ensure a stable, diverse, safe, and high-quality supply of crude oil 
with which to serve the Pacific Northwest. Marathon notes that the 
interstate rail system is particularly vulnerable in the affected 
Northwest region because it and every shipper that utilizes the 
nation's rail system depends on a single national standard to govern 
rail transportation.
    The Oklahoma AG, the North Dakota Department of Agriculture, 
Montana Petroleum Association, and the North Dakota Petroleum Council 
(NDPC), express concern that this type of law permits States with port 
cities, or points of access to particular transportation routes or 
hubs, to dictate national and foreign energy policy by imposing similar 
restrictions that ultimately impede another State's ability to move its 
natural resources to available markets. The Oklahoma AG notes the 
threat to landlocked States was of heightened concern since other 
States that may decide to employ the same rationale to deter the 
shipment of other fuels, such as natural gas from Oklahoma, or ethanol 
from Nebraska, would cause similar or greater injury than Washington 
State's vapor pressure law.
De Facto Ban
    Several commenters assert that the Washington State law amounts to 
a de facto ban on Bakken crude oil shipments because crude oil from the 
Bakken region typically has a vapor pressure in excess of 9 psi. To 
bolster this claim, other commenters point out that the law's 
legislative history clearly shows the legislature's intent to target 
Bakken crude by its frequent references to ``Bakken'' crude--and not 
any other types of crude--in its findings and justifications in earlier 
drafts of the law. Crestwood says the law is a blatant effort by the 
legislature to cripple the crude-by-rail trade between the Bakken 
region and oil refineries located in Washington State under the guise 
of improving safety.
    Furthermore, commenters assert that Washington State, in setting a 
vapor pressure limit of 9 psi, has created a separate regulatory regime 
that distinguishes between crude oil with a vapor pressure at or below 
9 psi, and that with a vapor pressure above 9 psi, which essentially 
reclassifies crude oil with a vapor pressure above 9 psi as a material 
``forbidden'' from transportation under the HMR. The Western States 
Petroleum Association (WSPA) agrees with this assessment of the law and 
adds that a separate regulatory regime will likely foster confusion and 
frustrate Congress's goal of developing a uniform, national scheme of 
regulation.
    Moreover, the Association of American Railroads, the American Short 
Line and Regional Railroad Association, and BNSF Railway Co. 
(collectively AAR) and WSPA indicate that nothing can be done post-
delivery to comply

[[Page 29517]]

with the vapor pressure requirement. Therefore, the Washington State 
law effectively bans any transportation of high vapor pressure crude 
oil by rail within the State of Washington, as there would be no lawful 
means under the State law for unloading the material upon its arrival 
at Washington State refineries.
    AFPM believes the law is not designed to reduce the number of 
combustion events within the State and increase safety, as Washington 
State claims, but is instead a backdoor attempt to prohibit Bakken 
crude from being refined within the State. According to AFPM, 
prohibiting the unloading of crude oil with a vapor pressure above 9 
psi will not prevent derailments of crude oil trains or mitigate the 
damage that such derailments cause. Serious large-scale impacts related 
to the transportation of hazmat by rail typically does not occur during 
the loading or unloading phases of the material's journey. Since the 
law only regulates unloading and technically exempts transportation of 
high-vapor pressure crude through its jurisdiction, AFPM suggests the 
true motivation of this law is to prohibit the delivery of Bakken crude 
to Washington State refineries.
    AFPM further hypothesizes that vapor pressure is a red herring here 
because Washington State is singling out Bakken crude while at the same 
time ignoring other Class 3 liquids with lower vapor pressures 
(ethanol, certain isomers of pentane, iso-octane, benzene, toluene, and 
the xylene isomers), which according to AFPM, have similar ignition 
risks because as flammable liquids, they can also burn under comparable 
circumstances.
    AAR declares that even if the transportation risks to Washington 
State's citizens were legitimate, the State cannot export those risks 
to other States by limiting transportation of a disfavored product into 
its own State at the expense of forcing the transport presumably 
through another State.
The Description, Classification, and Handling of Hazardous Materials
    Hess, AFPM, AAR, and other commenters assert that the Washington 
State law attempts to regulate the packaging, handling, and 
documentation of crude oil with rules that plainly differ from existing 
Federal regulations. The commenters note that these areas are covered 
subjects under the HMTA; and therefore, remark that any non-Federal 
requirement concerning these subjects must be substantively the same as 
the Federal requirements, or otherwise they must be preempted. 
According to the commenters, preemption is appropriate because 
Washington State's law conflicts with the comprehensive and technical 
classifications in the HMR and intrudes on the exclusive Federal role 
in classifying hazardous materials.
Description
    The Dangerous Goods Advisory Council (DGAC) asserts that the 
definition of a flammable liquid imposed by Washington State is not 
substantively the same as the definition of the material under the HMR. 
Specifically, DGAC notes that the HMR does not impose a vapor pressure 
limit on flammable liquids.
Classification
    NDPC and Continental Resources, Inc. (CLR) express their support 
for national uniformity and believe that allowing State specific laws 
to deviate from the HMTA's requirements directly undercuts its purpose 
of assuring a nationally uniform set of regulations applicable to the 
transportation of hazardous materials in commerce. Further, they note 
the HMR are not minimum requirements that other jurisdictions may 
exceed if local conditions warrant. Rather, the HMR are national 
standards and must be uniformly applied across jurisdictional lines. 
Here, they contend the Washington State law differs in material 
respects from the Federal requirements by classifying and regulating 
the handling of crude oil based on an arbitrary and unscientifically 
determined vapor pressure limit of no greater than 9 psi.
    The Western Independent Refineries Association (WIRA), the AG of 
Oklahoma, WSPA, RSI-CTC, AFPM, AAR, and API seemingly agree with this 
assessment of the law, as they all assert that Washington State's vapor 
pressure requirement designates a new class of crude oil based on vapor 
pressure. The commenters reason that the law divides the single 
classification for crude oil, as defined in the HMR, into two groups: 
Crude oil with vapor pressure below 9 psi; and crude oil with vapor 
pressure equal to or exceeding 9 psi. According to the commenters, the 
law effectively reclassifies crude oil with a vapor pressure greater 
than 9 psi, which they argue essentially designates the material as 
``forbidden'' for transportation because it imposes new classification 
and handling requirements whereas the Federal law does not. Others 
characterize the law as an outright ban of Bakken crude oil transport 
by rail.
Handling
    WIRA, API, and others believe the law's handling provisions that 
restrict the loading and unloading of crude oil from rail cars based on 
vapor pressure limits are not substantively the same as the Federal 
requirements. Moreover, although the commenters acknowledge that the 
HMTA does not preempt non-Federal requirements that purport to only 
regulate loading and unloading operations at facilities after the 
material is no longer in transportation, they insist the Washington 
State law's scope is much broader because it regulates all loading and 
unloading at Washington State facilities, regardless of who performs 
the operations.
    API says it is clear that the law regulates the handling of a 
hazardous material in a manner that is not substantively the same as 
the HMTA. Specifically, API says the law prohibits or limits (via caps 
on volume) the loading and unloading of crude oil from rail cars based 
on vapor pressure, whereas the HMR does not.
The Three Avenues of Compliance
    Generally, the commenters on this topic agree with the Applicants' 
notion that there are only three ways to comply with Washington State's 
vapor pressure limit for crude-by-rail. As outlined in their 
application, North Dakota and Montana identified the three avenues of 
compliance as (1) pretreating the crude oil prior to loading the tank 
car; (2) selecting an alternate mode of transportation; or (3) 
redirecting the crude oil to facilities outside Washington State. RSI-
CTC, WSPA, Crestwood, API, and others agree that requiring compliance 
with the law through pretreating, alternate modes of transportation, or 
rerouting outside Washington State would pose significant obstacles to 
the safety and national uniformity goals of the HMTA. For instance, 
RSI-CTC states that each of these methods would likely increase the 
risk of incident or exposure by unnecessarily extending the distance 
and time in transit. Crestwood points out that hazardous materials are 
inherently dangerous and thus must be transported without unnecessary 
delay. And API contends there are no commercially and logistically 
practical means to adapt to the limitations imposed by the law. Also, 
API says it can confirm that the Applicants' description concerning the 
unavailability, undesirability, and impracticality of the potential 
alternatives, is correct.

[[Page 29518]]

Pretreating
    According to the commenters, the primary issue with pretreating the 
crude oil to meet Washington State's 9 psi vapor pressure limit is the 
lack of the necessary infrastructure and equipment needed to pretreat 
the crude adequately. NDPC and CLR allege the North Dakota oil and gas 
industry does not have adequate infrastructure in place to pretreat 
crude oil produced in the Williston Basin \29\ to the specifications 
required by the Washington State law. NDPC estimates multiple stages of 
costly separation equipment and tankage would need to be installed. API 
further explains that currently, oil conditioning is done at the 
wellsite to comply with the North Dakota Industrial Commission's 
order,\30\ but the wellsite equipment cannot be used to reduce 
consistently the vapor pressure of Bakken crude to meet Washington 
State's 9 psi limit. Therefore, API asserts this would require the 
processing of the oil in a ``fractionator,'' equipment that it says is 
not economical to install at every wellsite. Instead, producers would 
have to redirect the crude oil to newly constructed facilities for 
processing. According to API, these facilities would essentially be 
small scale refineries that would need to be located at several points 
throughout the producing basin. This of course, as noted by the 
commenters here, will also result in increased handling, and additional 
transit time and miles traveled, collectively amounting to increased 
safety risks.
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    \29\ The Williston Basin is a large ``intracratonic sedimentary 
basin'' in eastern Montana, western North Dakota, South Dakota, and 
southern Saskatchewan, that is known for its rich deposits of 
petroleum and potash. The geological basin underlies the oil 
producing region known as the Bakken.
    \30\ The North Dakota Industrial Commission Order sets forth 
operating standards guiding the use of conditioning equipment to 
separate production fluids into gas and liquid components. The 
standard requires North Dakota operators to condition Bakken crude 
oil to a vapor pressure of no more than 13.7 psi. The Order is 
discussed in more detail in Section VI.
---------------------------------------------------------------------------

    In light of the infrastructure, equipment, and other logistical 
issues, the commenters have concluded that pretreating is economically 
infeasible or unrealistic. According to the Governor of North Dakota, 
the infrastructure necessary to comply with the vapor pressure law 
would add hundreds of millions of dollars to the cost of conditioning 
and transporting. CLR, Crestwood, Hess, AFPM, API, and others all agree 
the various costs that producers would likely incur in order to comply 
with the Washington State vapor pressure limit make pretreating cost-
prohibitive and simply not feasible.
    Another significant issue the commenters raise is the fact that 
pretreating will result in a surplus of light-end materials separated 
during the pretreatment process. These higher vapor pressure hazardous 
materials, such as butane, ethane, and other natural gases, are deemed 
essential and valuable components of Bakken crude, or as standalone 
commodities. As such, the commenters explain that these components will 
likely still need to be transported to Washington State via rail or 
other available modes. For example, Crestwood predicts an unintended 
consequence of the law whereby trains departing North Dakota for 
Washington State will likely include more tank cars filled with a 
greater variety of hazardous materials due to pretreating. API echoes 
this sentiment, adding that more shipments will increase the total time 
in transit and quantity of miles traveled, all of which translates to 
an increased risk of a transportation incident.
    Ultimately, the commenters agree that the additional pretreating 
requirements would create vast complexities and additional operational 
requirements that would greatly increase costs, lower efficiency, harm 
the environment, increase transportation, and reduce safety.
Alternate Modes of Transportation; Rerouting
    WIRA, NDPC, and AFPM claim that alternatives to transporting North 
Dakota crude-by-rail, including transportation via pipeline, truck, or 
waterway, are simply not feasible. CLR states that utilizing alternate 
modes, or rerouting and potentially avoiding Washington State 
altogether, will run afoul of the purpose and thrust of the HMTA. WIRA 
also notes that using other modes or rerouting \31\ will likely impact 
neighboring jurisdictions.
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    \31\ Commenters discussing the ``rerouting'' compliance option 
indicate it has many of the same issues already identified with 
respect to the alternate mode option, e.g., increased handling, 
additional miles traveled, longer transit times, and unnecessary 
delays.
---------------------------------------------------------------------------

    Several commenters point out that all modes of transporting crude 
oil are not equal. API commented that the oil industry chose rail 
transport, and developed the infrastructure to support it, because it 
is the most efficient and cost effective means to transport Bakken 
crude oil safely from North Dakota and Montana to refineries in 
Washington State. Other modes are commercially infeasible and would 
increase complexity and safety concerns. For example, API and RSI-CTC 
estimate that diverting rail shipments to highway would result in a 
staggering number of trucks having to replace the current capacity of 
crude oil transported via rail. According to RSI-CTC, it would take 
three motor vehicle cargo tanks to transport the same amount of product 
from one rail tank car. In turn, this will necessarily increase the 
amount of hazmat shipments on the highway and create a greater 
potential for harm to persons, property, and the environment. According 
to API, switching to marine vessel is even worse, necessitating a 
circuitous trip through the Panama Canal and adding thousands of miles 
to the transportation journey.
    These commenters are all in agreement on this point--whether by 
increasing the distance transported, the number of hazardous materials 
that will need to be transported, the number of loading and unloading 
events, the environmental impact of the underlying operations, or by 
causing unnecessary delays--the law presents increased risks and is an 
obstacle to accomplishing and carrying out the Federal hazmat law.
Sandia Study and Conclusions
    Commenters contend the Washington State law is misguided because 
its purported safety justification for mandating a vapor pressure limit 
for Bakken crude is not supported by science. The commenters point to 
the Sandia Study \32\ and its recently reported findings and 
conclusions. DGAC, WIRA, NDPC, Marathon, Hess, AFPM, and others, 
contend that the results of the Sandia Study are conclusive, finding 
that vapor pressure is not a statistically significant factor in 
affecting pool fire and fireball characteristics. Crestwood interprets 
the findings to mean that Bakken crude with higher vapor pressure is 
not more unstable than crudes with lower vapor pressures. Hess notes 
the Sandia Study ultimately concluded that all the oil samples studied 
have comparable thermal hazard distances and none of the oils studied 
indicate outlier behavior. These commenters collectively assert that 
the advancement of rail safety is simply not furthered by requiring the 
alteration of a material's vapor pressure.
---------------------------------------------------------------------------

    \32\ DOT and the U.S. Department of Energy commissioned Sandia 
Laboratories to conduct an extensive review and analysis of crude 
oil, focusing on its chemical and physical properties, and its 
potential for ignition, combustion, and explosion. The Sandia Study 
is discussed in more detail in Section VI.
---------------------------------------------------------------------------

    Moreover, the commenters claim the Sandia Study does not support 
creating a distinction for crude oils based on vapor pressure with 
regard to

[[Page 29519]]

combustion events. According to WIRA, the recently completed study 
shows that regulating according to vapor pressure distinctions results 
in no measurable benefits in terms of transportation safety as compared 
to what is already covered under the existing Federal regulations, 
which are designed to ensure safe national transportation standards. 
NDPC believes that once packaged properly, vapor pressure levels have 
no additional impact on the safety effectiveness during the shipment of 
Bakken crude oil by rail tank car.
    AFPM also avers that vapor pressure of petroleum crude oil in 
transportation has no impact on the frequency of derailments. 
Furthermore, although API recognizes the existence of genuine concerns 
generated by recent high profile rail incidents, it states that the 
science, lessons learned, and investigations of those incidents have 
failed to reveal any casual connection between the vapor pressure of 
the product and the outcomes of the incidents.
    RSI-CTC acknowledges that to date, PHMSA has not determined that it 
is appropriate to establish a vapor pressure standard for crude oil. 
Furthermore, Hess suggests there are other recent studies that support 
the Sandia Study's finding that characteristics of Bakken crude oil are 
similar to other crude oils. Accordingly, Hess recommends that PHMSA 
defer to those studies for accurate analytic information regarding the 
safety characteristics of Bakken crude oil. NDPC suggests the Sandia 
Study settles any lingering uncertainties--that is, vapor pressure does 
not need to be regulated, whether through a rulemaking by PHMSA or 
legislation from the State of Washington, in order to secure the safe 
transportation of the subject commodity via the nation's rail network.

B. Comments Opposing Preemption

The Description, Classification, and Handling of Hazardous Materials
    The AG of Washington and Earthjustice commented on the Applicants' 
arguments regarding classification and handling. Their comments on 
these topics were essentially the same.
Classification
    The commenters attempt to refute the Applicants' argument that the 
law effectively reclassifies petroleum crude oil with a vapor pressure 
greater than 9 psi. This assertion is simply not true according to the 
AG of Washington. He asserts that the law has no impact on the Federal 
crude oil classification requirements. Furthermore, the AG of 
Washington contends that under the Washington State law's requirements, 
crude oil shipped to Washington State facilities will continue to be 
classified as a Class 3 hazardous material in accordance with the HMR. 
In addition, he argues that all other requirements (packaging, marking, 
labeling, and shipping papers) will remain unchanged.
Handling
    The commenters opposing preemption contend that the vapor pressure 
limit is not ``handling'' subject to preemption because it only impacts 
unloading activities at facilities after transportation had ended. 
According to the AG of Washington, the Washington State Department of 
Ecology (WADOE) is purportedly familiar with the facilities' unloading 
protocols. He describes a practice whereby facility personnel unload 
crude-by-rail shipments after the rail carrier delivers the tank cars 
and departs. After the facility unloads the crude oil, the rail carrier 
returns and retrieves the empty tank cars. Earthjustice's description 
of the unloading practices at Washington State facilities is the same. 
Here, the descriptions provided by the commenters are noteworthy 
because they purport to depict unloading operations that appear to be 
outside the scope of the HMTA.
The Three Avenues of Compliance
    The AG of Washington and Earthjustice challenge the Applicants' 
arguments regarding the three purported avenues of compliance. 
Regarding pretreatment, the AG of Washington accuses the Applicants of 
overgeneralizing and impermissibly speculating when they suggest that 
all Washington State-bound crude oil will need to undergo cost-
prohibitive offsite pretreatment. According to the AG of Washington, 
and supported by Earthjustice's comments, the average vapor pressure of 
Bakken crude is 11.81 psi. Moreover, he references a research study 
that suggests some Bakken wellheads will produce crude oil that already 
satisfies the 9 psi limit. Meaning, compliance can likely be achieved 
by conditioning the oil, which is relatively cheap. Earthjustice adds 
that oil producers are already performing some oil conditioning. 
Earthjustice also notes that at least one North Dakota pipeline 
operator will not accept crude oil with a vapor pressure greater than 9 
psi for transportation.
Pretreating
    The AG of Washington claims the Applicants' pretreatment argument 
rests on a double standard, considering the fact that North Dakota has 
already established its own vapor pressure limit through the North 
Dakota Industrial Commission (NDIC) order. He asks, if North Dakota can 
impose a vapor pressure limit, then why can't the State of Washington 
do the same? If North Dakota's limit is consistent with the HMTA, then 
why does Washington State's limit pose an obstacle?
Alternate Modes of Transportation
    The AG of Washington and Earthjustice assert that the Applicants, 
beyond mere speculation, have not provided any evidence to support 
their position that a shift in the mode of transportation would have 
implications for crude oil transit time, distance traveled, number of 
transloading events, accident rates, and other factors that impact the 
safe transportation of hazardous materials. On this point, the 
commenters insist that a vague allusion to implications is not 
sufficient evidence.
Rerouting
    The AG of Washington and Earthjustice dismiss the Applicants' 
argument that rerouting will create unnecessary delay in the 
transportation of hazardous materials. The AG of Washington contends 
that this argument fails because Washington State's law will have no 
impact on transit time because it addresses loading and unloading at 
Washington State facilities; it does not regulate the movement of crude 
oil in any other way.
Regulates Facilities, not Transportation
    Generally, it is the position of commenters opposing preemption 
that the Washington State law only regulates activities performed at 
in-state facilities. According to the AG of Washington and 
Earthjustice, the law does not impose any requirements on rail carriers 
and it will have no direct impact on the Applicants. Specifically, 
regarding the vapor pressure requirement, Earthjustice claims it will 
have no direct impact on rail carriers and that it expressly does not 
prohibit a railroad car carrying crude oil from entering the State; nor 
does it require the trains to stop or be checked for vapor pressure 
before entering the State. Similarly, as with the vapor pressure limit, 
the commenters contend that the ANT requirement's compliance burden 
falls entirely on Washington State facilities. Thus, shippers and 
carriers do not submit ANT data and the Applicants, or any

[[Page 29520]]

other States, do not have new duties under the law. Moreover, the AG of 
Washington indicated that a version of the ANT requirement has already 
been in effect in the State since 2015, and points out that neither 
North Dakota nor Montana challenged the law when it was originally 
enacted.
    The commenters contend that the Applicants' claim that the vapor 
pressure limit's explicit purpose is to regulate the handling of 
hazardous materials during transportation by imposing volatility 
limits, is false. The AG of Washington and Earthjustice assert that the 
vapor pressure limit is not ``handling'' subject to preemption because 
it only impacts unloading activities at facilities after transportation 
had ended. As they explain it, the unloading practices at Washington 
State refineries exhibit something along the following: Facility 
personnel unload crude-by-rail shipments after the rail carrier 
delivers the tank car and departs. After the facility unloads the crude 
oil, the rail carrier returns and retrieves the empty tank cars.
Regulatory Gap
    The AG of Washington, Earthjustice, and individual commenters 
defend the law by claiming its vapor pressure limit addresses a 
regulatory gap in the Federal law and regulations governing the 
transportation of crude-by-rail. Earthjustice states that despite a 
number of well-documented oil train crashes and derailments, there is 
no Federal regulations limiting the volatility of crude oil shipped in 
railroad tank cars. Individual commenters agree, and characterize the 
perceived regulatory gap as PHMSA's failure to protect communities.
    The AG of Washington alleges the Federal government has undertaken 
no serious effort to regulate vapor pressure. Furthermore, Earthjustice 
contends that PHMSA has failed to set a nationwide volatility standard, 
even though it has received a petition for rulemaking requesting that 
it set one.
    The AG of Washington and Earthjustice explain that the State of 
North Dakota stepped in to address the regulatory gap in 2015, with the 
NDIC Order setting a vapor pressure limit of 13.7 psi to allegedly 
improve the safety of Bakken crude oil for transport. But according to 
the AG of Washington, the State of North Dakota's vapor pressure limit 
is insufficient to protect public safety because the threshold is too 
high and enforcement is lenient. Notwithstanding, the AG of Washington 
asserts that his State is under no obligation to honor the State of 
North Dakota's standard. And, since there is no national standard, the 
commenters reason that Washington State is free to establish its own 
vapor pressure limit to fill a regulatory vacuum.
ANT Requirement
    The AG of Washington asserts the ANT requirement improves local 
emergency preparedness and therefore poses no obstacle to the HMTA. 
According to the AG of Washington, the law applies only to Washington 
State facilities that unload crude-by-rail shipments, and as such, rail 
carriers do not have duties under the law. Also, the AG of Washington 
states that the law does not conflict with the High-Hazard Flammable 
Train (HHFT) notification rules,\33\ nor will it cause confusion among 
Washington State's emergency responders because responders will still 
rely on the material's emergency response information contained in the 
shipping papers. Finally, the AG of Washington argues the law does not 
regulate a pre-transportation function as alleged by the Applicants 
because it does not apply to shippers or carriers.
---------------------------------------------------------------------------

    \33\ The HHFT notification rules specify that HHFT information 
sharing notification must include: (1) A reasonable estimate of the 
number of HHFTs that the railroad expects to operate each week, 
through each county within the State or through each tribal 
jurisdiction; the routes over which the HHFTs will operate; (2) a 
description of the hazardous material being transported and all 
applicable emergency response information required by subparts C and 
G of part 172; (3) at least one point of contact at the railroad 
with knowledge of the railroad's transportation of affected trains; 
and (4) if the route is subject to oil spill response plan 
requirements, the notification must include a description of the 
response zones and contact information for the qualified individual 
and alternate. Railroads are required to update the notifications 
for changes in volume greater than twenty-five percent. See 49 CFR 
174.312.
---------------------------------------------------------------------------

    Earthjustice also attempts to refute the Applicants' case for 
preemption of the Washington State law. Earthjustice contends the law 
only applies to Washington State facilities, not railroads. 
Earthjustice argues that since there is no corresponding Federal ANT 
requirement, and Washington State's law does not apply to shippers or 
carriers, it cannot possibly pose an obstacle. As for the Applicants' 
objection to the ANT requirement based on the theory it will be 
confusing to first responders, Earthjustice counters with the 
supposition that emergency responders should have the best and most 
complete information.

C. Rebuttal Comments

Opposing Preemption
    The AG of Washington filed rebuttal comments. Also, the Attorneys 
General of New York, California, Maryland, and New Jersey (AG Alliance 
against Preemption) jointly filed their rebuttal comments.
    The AG of Washington asserts that the Applicants lack authority to 
seek a preemption determination because they are not ``directly 
affected'' by the challenged laws. According to the AG of Washington, 
the question of standing is a threshold issue and he points out that 
none of the commenters supporting preemption, nor the Applicants, have 
adequately demonstrated that North Dakota and Montana satisfy this 
requirement. Furthermore, he cautions PHMSA that the agency has no 
discretion to disregard the standing question and that it risks 
judicial review if it proceeds despite the Applicants' lack of 
standing. Here, the AG of Washington reiterates his initial comment on 
this issue, e.g., that the Applicants are not directly affected because 
(1) the vapor pressure limit has not yet taken effect; (2) the 
potential impact to the Applicants' tax revenue is unduly speculative; 
and (3) a tax revenue impact is a classic indirect impact. For these 
reasons, the AG of Washington continues to assert that Washington 
State's vapor pressure limit has no direct impact on any opposing 
State's sovereign interests.
    The AG of Washington also argues that PHMSA must separately 
determine that the Applicants have standing to challenge the law's ANT 
requirement, claiming the Applicants made no connection between their 
respective sovereign interests and the ANT requirement. The AG of 
Washington submits that should PHMSA find the ANT requirement--alleged 
to be an entirely local safety measure--directly affects another 
State's sovereign interests, the agency will have rendered the standing 
requirement toothless. Notwithstanding the above standing question, it 
is the AG of Washington's position that the vapor pressure and ANT 
requirements are legitimate exercises of State authority that will 
improve public safety given the extreme risks of crude-by-rail 
transportation.
    The AG of Washington further asserts the vapor pressure law is not 
an obstacle under the HMTA because it does not regulate the 
transportation of crude oil and is therefore not subject to preemption 
under the HMTA. Moreover, the AG of Washington argues that the law 
cannot be preempted under the HMTA's ``substantively the same'' test 
with respect to handling (loading and unloading) or classification, 
because the vapor pressure law regulates loading and unloading 
functions at facilities, after the crude oil has been delivered and 
transportation has ended. Regarding classification, the

[[Page 29521]]

AG of Washington points out--contrary to the claims made by commenters 
in support of preemption that the law creates a new classification of 
crude oil based on vapor pressure--the law has no impact on the Federal 
classification requirements for crude oil. Crude oil shipped to 
Washington State refineries will still be classified as a Class 3 
hazardous material in accordance with the HMR.
    The AG of Washington also highlights the willingness of certain 
commenters to challenge Washington's vapor pressure law, while 
apparently not objecting to the State of North Dakota's vapor pressure 
limit. The AG of Washington believes both laws are valid exercises of 
State authority given the absence of Federal action on the subject. 
Furthermore, he suggests that a decision by PHMSA preempting Washington 
State's law would not only suppress innovation that would result from 
efforts to comply with Washington State's law, but also reward the 
State of North Dakota for winning a regulatory ``race to the bottom'' 
with its comparatively weak vapor pressure limit that seems to be 
regarded as the de facto national standard.
    Also, the AG of Washington attempts to refute commenters' arguments 
that the Sandia Study disproved a link between vapor pressure and rail 
safety by noting the Sandia Study's pool fire and fireball experiments 
did not adequately consider ignition potential, which the AG of 
Washington says his State's vapor pressure limit is intended to 
address.
    Finally, the AG of Washington contends the State's ANT requirement 
is not preempted because it is a local emergency preparedness measure 
that applies only to Washington State facilities. Furthermore, the AG 
of Washington dismisses claims that the requirement will create 
confusion for shippers and carriers, or that the ANT measures will 
result in additional requirements for hazmat shipping papers. According 
to the AG of Washington, local facilities have already been providing 
advance notice of crude oil shipments since 2015, without any major 
technical difficulties or confusion; and the new requirement will have 
no impact on shipping papers nor impose any additional compliance 
obligations on shippers and carriers.
    The AG Alliance against Preemption filed its joint comments to 
respond primarily to the comments filed by the AG Alliance for 
Preemption, led by Oklahoma. The AG Alliance against Preemption 
supports the Washington State law and believes that in the face of 
PHMSA's failure to adopt a Federal vapor pressure standard, it is 
entirely appropriate for States to take reasonable and necessary 
measures to protect communities, first responders, businesses, and 
natural resources within their respective borders.
    The AG Alliance against Preemption, with regard to vapor pressure, 
indicates that despite Federal mandates, a petition for rulemaking, and 
PHMSA's publication of an Advanced Notice of Proposed Rulemaking on the 
petition, the agency has failed to close an ``existing regulatory 
loophole'' by either finalizing a vapor pressure rule or establishing 
an interim protective vapor pressure standard. In fact, the AG Alliance 
against Preemption asserts that rather than close the regulatory 
loophole, the Federal government's efforts have either lagged or 
actively moved to roll back critical safety protections for high-hazard 
flammable unit trains that transport crude oil across the country. For 
example, the AG Alliance against Preemption notes the Sandia Study is 
more than two years behind schedule; and it criticizes the August 2019 
report as a ``limited experiment'' that does not inspire confidence in 
the project's planning, sampling, or analytical methods, or the 
report's conclusions. Moreover, the AG Alliance against Preemption 
asserts that the Department's recent regulatory reform actions will 
increase the likelihood, and dangerous consequences, of oil train 
accidents and derailments. Here, the AG Alliance against Preemption 
points to the recent withdrawal by the Federal Railroad Administration 
(FRA) of the 2-person crew ANPRM, and PHMSA's and FRA's decision not to 
include an electronically controlled pneumatic brakes requirement in 
the HHFT final rule.
    According to the AG Alliance against Preemption, these regulatory 
failures coupled with known market failures in the rail sector that 
prevent or discourage actions to improve the safety of transporting 
crude oil by rail, has created the situation today where States are 
filling this regulatory void by adopting their own protective vapor 
pressure standards.
Supporting Preemption
    The Applicants submitted their rebuttal to comments filed in 
opposition to their petition. In addition, API and AFRM each filed 
rebuttal comments.
    The Applicants assert they have standing to bring this petition and 
characterize the AG of Washington's interpretation of the requirement 
as overly narrow and also contradictory of the agency's long-standing 
precedent of interpreting the standing requirement broadly. The 
Applicants claim that they will suffer several direct effects, 
including specific reductions in oil and gas severance tax revenue, and 
reductions in royalties received from producers, as the rightful 
landowners underlying oil and gas leases. In addition, they say both 
States will confront real and decidedly non-speculative safety, 
environmental, and economic effects associated with the additional pre-
treatment requirements for Bakken crude oil or with the need to 
identify alternative modes and routes of transportation in order to 
comply with the law.
    According to the Applicants, the State of North Dakota imposes an 
oil and gas severance tax. The State of North Dakota relies upon the 
resulting tax revenue to support its education system, its drinking 
water infrastructure development, and more. The Applicants contend that 
pretreatment of oil will devalue the product and alternative markets 
will yield lower returns and therefore generate lower tax revenues. 
Moreover, the Applicants state they are land grant States, meaning each 
State itself is the landowner for several oil and gas leases throughout 
the Bakken region, generating direct royalties from oil and gas 
extraction operations occurring on State-owned land. As such, they 
contend the Washington State law will directly affect their royalty 
revenue.\34\
---------------------------------------------------------------------------

    \34\ North Dakota estimates that it will lose an average of 
approximately $32,000 per day from July 1, 2019-June 30, 2020 (i.e., 
through the end of the current fiscal year) and an average of 
approximately $36,000 per day thereafter through July 1, 2031, in 
lost oil and gas severance tax revenue as a result of the Washington 
Law (based on the market rate for Bakken crude oil in July 2019). 
See Docket No.: PHMSA-2019-0149; Document No.: 4397; at https://www.regulations.gov/document?D=PHMSA-2019-0149-4397.
---------------------------------------------------------------------------

    Also, the Applicants say they will face multiple consequences 
associated with the construction of new infrastructure to meet 
Washington State requirements (pretreatment facilities and access 
roads), including environmental and safety consequences associated with 
the additional handling and movement of hazmat related to pretreatment.
    Regarding the Applicants' standing for the notification 
requirement, they both argue that it is not appropriate for PHMSA to 
sever the ANT and vapor pressure requirements for the requisite 
preemption analysis--as suggested by the AG of Washington--because the 
ANT requirement enables the State to enforce its vapor pressure limit 
and accordingly, it must be examined in the context of the prescribed 
the limit.

[[Page 29522]]

    API suggests the facts presented by the Applicants convincingly 
support a finding that the States of North Dakota and Montana are 
directly affected by the Washington State law. For example, API argues 
that certain changes required to pretreat Bakken crude oil to satisfy 
Washington State's vapor pressure limit will naturally impact the 
Applicants' energy economy and underlying infrastructure, and further, 
that it will increase handling and transportation of hazardous 
materials resulting in increased safety risks within both States. API 
also notes that the inability to treat Bakken crude oil to comply with 
State of Washington's vapor pressure limit will inevitably result in 
lower commodity values or lost sales, corresponding to lost tax and 
royalty revenue for the Applicants. Moreover, API contends that 
additional facts showing the Applicants are directly affected include 
the comments submitted in this proceeding by Washington State 
refineries that attempt to refute the AG of Washington's claims that 
the law has no immediate or substantial effects or impacts on North 
Dakota and Montana companies that develop, produce, condition, and 
transport Bakken crude.
    AFPM states the AG of Washington's argument that the Applicants' 
tax and revenue will not be reduced because Washington State refineries 
will simply turn to other sources of crude oil demonstrates a 
fundamental misunderstanding of the global petroleum market. According 
to AFPM, the options for Bakken crude oil producers and suppliers to 
market their crude oil are reduced as a result of the Washington State 
law. AFPM explains that due to the shortage of pipeline infrastructure, 
the majority of Bakken crude oil is transported by rail. AFPM suggests 
that should Washington State refineries stop receiving Bakken crude 
oil, it would likely still move by rail, but potentially at longer 
distances and at higher costs. This would reduce the value of the crude 
oil and therefore directly reduce the Applicants' State tax and royalty 
revenue. AFPM asserts that this outcome will have an immediate and 
harmful effect on the Applicants' interests, which stands in direct 
contradiction of the AG of Washington's assertion that the law will 
have no real-world effect.
    AFPM informs PHMSA that as the leading trade association 
representing the refinery industry, it has standing to seek a 
preemption determination since its members are directly affected by 
Washington State's law. In fact, several AFPM members have filed 
comments in this proceeding explaining how they are directly affected. 
Therefore, in the event the agency has concerns with the Applicants' 
standing, AFPM requests that the agency treat its comments in this 
proceeding as a separate application for a preemption determination on 
the Washington State law.
    The Applicants attempt to refute the AG of Washington's contention 
that they have failed to provide sufficient evidence to support their 
petition. They argue the HMTA does not limit PHMSA's preemption 
consideration to the information presented in the original petition and 
that the administrative record is sufficient based on the contents of 
their application and the other relevant information received from 
other commenters' submissions.
    Moreover, the Applicants note that commenters opposing preemption 
claim the law only regulates unloading of crude oil at facilities as 
opposed to handling of crude oil--and thus, is beyond the scope of the 
Federal law and regulations. However, the Applicants state that the 
vapor pressure limit is equally applicable to loading facilities in 
North Dakota and Montana, which is inherently a regulated function 
under the HMR. Furthermore, the Applicants point out that ``unloading 
incident to movement'' is an activity regulated by the HMR when 
performed by carrier personnel or in the presence of carrier personnel. 
As such, the Applicants assert that the Washington State law involves 
transportation regardless of whether a carrier is present and 
therefore, the challenged law seeks to regulate activities that include 
``loading incident to movement,'' a regulated function falling within 
the scope of the HMR.
    API asserts that the AG of Washington misstates the purpose and 
nature of its vapor pressure law by stating that it applies only to 
unloading activities at facilities located in Washington State, even 
though elsewhere in its comments the AG of Washington admits that the 
law was enacted to address the threats posed by crude-by-rail 
transportation. API notes that other commenters have conceded that the 
law targets the transportation of Bakken crude-by-rail and not the 
unloading of the material at facilities. API opines that the law's 
vapor pressure limit and prohibitions on unloading at facilities will 
severely curtail or eliminate rail transport of untreated Bakken crude 
into the State of Washington. As such, API states that PHMSA should 
reject Washington State's insincere and pretextual focus on 
``unloading'' and preempt the law because, by its nature and purpose, 
it seeks to regulate transportation in a manner that is not 
substantively the same as, and that poses obstacles to the 
accomplishment of, the HMTA.
    API claims the AG of Washington falsely asserts that the law has 
not taken effect and that its penalties do not affect rail 
transportation. According to API, the law's volume restriction for 
existing facilities currently applies to 2019 volumes. As such, 
facilities cannot ignore this cap simply because, once triggered, the 
total ban on further shipments and potential associated penalties do 
not take effect for two years. For example, API notes that at least one 
refinery has commented that it has already drastically reduced 
scheduled shipments to avoid exceeding the law's volume cap.
    The Applicants argue the Washington State law fails the obstacle 
test because the State's self-styled three avenues of compliance 
actually increase the risk of an incident during transportation; cause 
unwarranted delay; and increase transit times. Here, the Applicants 
reiterate a primary argument they raised in their petition; that is, 
that there are only three avenues for compliance: Pretreatment; seek 
alternative modes of transportation; or redirect the crude oil to 
facilities located outside of Washington State. Regarding pretreatment, 
the Applicants note that multiple commenters have reinforced their 
arguments that pretreatment is cost prohibitive and existing 
conditioning infrastructure is insufficient to achieve Washington 
State's 9 psi vapor pressure limit. Furthermore, the Applicants state 
that pretreatment increases the inherent risk of an incident in 
transportation because the law ultimately requires additional handling 
and movement. The AG of Washington argues that the Applicants have 
failed to provide evidence of the anticipated increase in miles 
traveled due to pretreatment, re-routing, or modal shift. But the 
Applicants insist that the administrative record contains ample 
evidence that these activities will result in an increase of total 
miles traveled for hazardous materials.
    The Applicants and AFPM attempt to refute the AG of Washington's 
argument that under Washington State's law, crude oil will still be 
classified as a ``Class 3 Flammable liquid,'' just as it is classified 
under the HMR. According to the Applicants and AFPM, the Washington 
State law creates two classes of crude oil, one with vapor pressure 
below 9 psi and one with vapor pressure above 9 psi. The Applicants and 
AFPM contend this new classification essentially forbids the 
transportation of crude oil by rail because of the law's handling 
(loading and unloading) restrictions.

[[Page 29523]]

    AFPM states that any argument asserting the Washington State law is 
beyond the scope of the Federal hazmat law because it only regulates 
unloading at facilities after transportation has ended, 
mischaracterizes the purposes of the Washington State law. AFPM notes 
that commenters, in defense of the Washington State law, have conceded 
its intent is to regulate and address potential safety issues 
associated with the transport of Bakken crude by rail, not the 
unloading of the petroleum products at the facilities to which they are 
shipped. AFPM points out the Washington State law does not address 
areas typically reserved to local police powers, such as worker safety, 
public health, and environmental safety. As such, AFPM contends that 
the law impacts transportation and is not just confined to unloading 
operations. Thus, AFPM has concluded the Washington State law starts 
regulating from the time Bakken crude, destined for Washington State 
facilities, is loaded onto rail cars in North Dakota and Montana. 
Notwithstanding, AFPM also notes that the Federal hazmat law and 
regulations include pre-transportation and transportation-related 
functions, including unloading operations.
    The Applicants assert that the Washington State law is an obstacle 
to carrying out the purpose of the HMTA and does not enhance safety or 
fill a regulatory gap. The Applicants further contend that the Sandia 
Study Report underscores the conclusion that Washington's law is 
preempted and does not enhance safety. The Applicants believe the 
Sandia study is important for the following reasons: (1) It was 
commissioned by Federal agencies and conducted by a respected national 
laboratory; (2) it demonstrates in practical terms that a vapor 
pressure limit is within the province of a national inquiry and should 
therefore be left to determinations at the Federal level; and (3) it 
debunks the Washington State law's purported purpose of imposing a 
vapor pressure limit to improve public safety in the event of a crude-
by-rail derailment. Simply stated, the Applicants conclude that the 
science does not support the assumption that regulating vapor pressure 
will mitigate the consequences of a derailment. The Applicants note 
that commenters supportive of the law rely on the findings from a 2014 
DOT enforcement effort, rather than the latest comprehensive and 
scientific research study undertaken by Sandia National Laboratories. 
The Applicants highlight the fact that the report concluded that vapor 
pressure is not a statistically significant factor in affecting pool 
fire and fireball burn characteristics. The applicants contend that the 
results of the study do not support a basis for creating a distinction 
among crude oils based on vapor pressure.
    AFPM alleges that the AG of Washington's safety rationale for the 
Washington State law is not supported by science as evidenced by the 
Sandia Study and the recently completed Task 3 report. AFPM notes the 
commenters against preemption have failed to rebut the extensive 
scientific research that is included in this proceeding's 
administrative record. AFPM rejects the AG of Washington's argument 
that the Sandia Study is irrelevant because it allegedly does not 
examine the relationship between higher vapor pressure and ignition. 
AFPM points out that the Sandia Study concluded that ignition potential 
cannot be identified by a single index, and that vapor pressure is not 
a statistically significant factor in affecting the degree of thermal 
hazardous outcomes incident to a derailment scenario; and accordingly, 
there is no scientific basis for making regulatory distinctions based 
on vapor pressure levels. To the contrary, AFPM states that derailments 
typically produce ignition sources such as sparks from metal-on-metal 
stresses. The vapor pressure of a flammable liquid has no bearing on 
the likelihood of ignition or the frequency of derailment in these 
circumstances. Therefore, it is AFPM's position that Washington State 
and its supporters' heightened concerns about high vapor pressure 
ignition potential in a derailment scenario is entirely misplaced. AFPM 
dismisses the notion that any further research on Bakken crude oil 
vapor pressure is necessary given the comprehensive research and 
results contained in the Sandia Study.
    AFPM notes that Earthjustice relies on data from the Department's 
initial examination of the crude-by-rail transportation system to 
support the proposition that Bakken crude oil is uniquely dangerous. 
However, AFPM points out that DOT's earlier approach was driven by a 
lack of understanding, research and analysis, and that these 
limitations are now overcome by virtue of the Sandia Study, 
representing the most comprehensive and definitive scientific research 
on this issue. AFPM reiterates its contention that there is no 
regulatory gap here as alleged by the AG of Washington and other 
commenters. Rather, AFPM believes the Department has taken a measured 
and thorough approach in considering whether to regulate vapor pressure 
and as such, the Sandia Study effectively completes Federal research on 
this topic, and accordingly, the agency can now conclude that no 
additional regulation on vapor pressure limits is warranted.

VI. Discussion

A. The Applicants' Standing To Apply for a Preemption Determination

    The AG of Washington and other commenters opposing the application 
assert the Applicants lack standing to challenge Washington State's 
vapor pressure requirements. The AG of Washington, Earthjustice, and 
other commenters believe the Applicants have not shown they are 
directly affected by the challenged law, as required by the HMTA.
    According to the AG of Washington, the Applicants do not have 
standing because the vapor pressure limit has not yet taken effect; the 
potential impact to the Applicants' tax revenue is unduly speculative; 
and a decrease in tax revenue is a classic ``indirect'' impact.
    Furthermore, the AG of Washington argues that irrespective of the 
Applicants' standing with respect to the requirement to set a vapor 
pressure limit, the agency must make a separate determination regarding 
the Applicants' eligibility to bring a challenge against the ANT 
requirement, and he claims the Applicants make no connection between 
their sovereign interests and that requirement.
    The Applicants assert they have standing to bring this petition and 
characterize the AG of Washington's interpretation of the HMTA's 
standing requirement as overly narrow, stating that this view 
contradicts the agency's long-standing precedent of interpreting the 
standing requirement broadly. Furthermore, the Applicants, as 
landowners, contend they will suffer several direct effects including 
specific reductions in oil and gas severance tax revenue, and 
reductions in royalties received from oil producers. The Applicants 
explain that North Dakota and Montana are land grant States, meaning 
the States themselves are the landowners for several oil and gas leases 
throughout the Bakken region. Accordingly, they say each State receives 
direct royalties from oil and gas extractions occurring on State-owned 
land.
    In addition, the Applicants assert that both States will confront 
real and ``decidedly'' non-speculative safety, environmental, and 
economic effects due to the State of Washington's requirements. 
American Petroleum Institute (API) and the American Fuel & 
Petrochemical Manufacturers (AFPM) agree that the Applicants have 
standing. They contend that the Applicants'

[[Page 29524]]

submissions, as well as other comments filed in this proceeding, 
sufficiently demonstrate how the Applicants are directly affected.\35\ 
API also notes the HMTA's preemption provision expressly grants States 
their own right to seek a preemption determination by its explicit 
reference to a ``State'' in the language authorizing who is eligible to 
apply.
---------------------------------------------------------------------------

    \35\ AFPM notes in its rebuttal comments that it is a leading 
trade association representing the refinery industry and has 
associational standing consistent with long-standing agency 
precedent. Therefore, AFPM writes that in the event PHMSA has 
concerns with the Applicants' standing, AFPM has requested that the 
agency treat its comments in the proceeding as a separate 
application for a preemption determination on the Washington State 
law. See Docket No.: PHMSA-2019-0149; Document No.: 4395; at https://www.regulations.gov/document?D=PHMSA-2019-0149-4395. PHMSA agrees. 
AFPM represents refineries that are regulated by Washington's law. 
Even if the Applicants were not directly affected, AFPM would be, 
and PHMSA could make a determination on that basis.
---------------------------------------------------------------------------

    Section 5125(d) authorizes ``[a] person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State . . .'' to apply for a determination of 
preemption. 49 U.S.C. 5125(d) (emphasis added). Under the ``directly 
affected test,'' it must be determined whether the applicant will 
benefit by having the issues in its petition resolved. See Illinois 
Environmental Protection Agency's Uniform Hazardous Waste Manifest, 58 
FR 11176, 11181 (Feb. 23, 1993). The agency has a long-standing 
practice of liberally construing this threshold requirement. Generally, 
the agency interprets the requirement broadly to advance the notion 
that important preemption issues (such as national uniformity of 
hazardous materials transportation regulation) are raised under the 
HMTA, and all parties engaged in hazmat transportation will be served 
by the agency addressing preemption issues. See PD-32(R), Maine 
Department of Environmental Protection Requirements on Transportation 
of Cathode Ray Tubes, 74 FR 46644, 46648 (Sept. 10, 2009), quoting from 
PD-2(R) at 11181.
    PHMSA has considered petitions from applicants who are affected by 
non-Federal requirements in a variety of ways. We have said, for 
example, that if a ``requirement applies to the applicant,'' the 
applicant need not show that it ``is `adversely affected,' `aggrieved,' 
or has suffered `injury' or `actual harm.' '' PD-12(R), New York 
Department of Environmental Conservation; Requirements on the Transfer 
and Storage of Hazardous Wastes Incidental to Transportation, 60 FR 
62527, 62532 (Dec. 6, 1995), decision on reconsideration, 62 FR 15970 
(April 3, 1997). We have also held that a group of hazardous waste 
shippers could seek a determination with respect to a State law 
mandating that hazardous waste generators create a certain type of 
manifest. PD-2(R), 58 FR at 11182. And while enforcement issues, and 
how the non-Federal requirement is actually applied, are relevant to 
our preemption analysis under the obstacle test, these issues do not 
factor into whether an applicant is within the scope of those persons 
entitled to use the statute's administrative procedure for requesting a 
preemption determination. Id.
    The plain language of the statute presupposes a State as a 
potential applicant. 49 U.S.C. 5125(d). Since a State will rarely if 
ever actually be subject to another State's law, the inclusion of 
States as applicants confirms that Congress used ``directly affected'' 
broadly. In this case, the only issue is whether the Applicants have 
made a sufficient showing that they are ``directly affected'' by the 
Washington State law. The Applicants have indicated they are land grant 
States, and as such, are landowners for several oil and gas leases 
throughout the Bakken region. According to the Applicants, North Dakota 
and Montana each receives direct royalties from oil and gas extractions 
occurring on State-owned land. In addition, the Applicants assert that 
both States will confront real and ``decidedly'' non-speculative 
safety, environmental, and economic effects due to the Washington State 
requirements.
    Based on information in the administrative record for this 
proceeding, it has been established that a majority of all the crude 
oil that leaves the Applicants' borders is destined for refineries in 
Washington State. And, since the law purports to regulate the 
volatility of crude oil transported into Washington State for loading 
and unloading, it likely applies to crude oil shipments originating 
from the Applicants' holdings in the Bakken region. As such, the 
Applicants' quasi-sovereign interests over their natural resources are 
tangible interests that are directly affected by the State of 
Washington's law. Contrary to Washington's arguments, these effects are 
not too indirect or speculative under PHMSA's broad interpretation of 
``directly affected.'' PHMSA rejects Washington's contention that the 
Applicants are not directly affected because the vapor pressure limit 
has not yet gone into effect. This argument would deny standing to any 
applicant at this time, and would require the Applicants to file a new 
application at some point in the future; we do not believe that the 
Federal hazardous materials transportation law requires PHMSA to delay 
making a determination.
    Moreover, regarding the ANT requirement, we do not accept the AG of 
Washington's bifurcated interpretation of the standing requirement, 
which would require us to make a separate determination of the 
Applicants' eligibility to challenge this section of the Washington 
State law. Here, the ANT requirement is an integral part of the overall 
statutory scheme providing for the State's new requirements addressing 
alleged safety concerns related to the transportation of crude oil by 
rail within the State. As such, the Applicants are directly affected by 
the entire legislative scheme, including the ANT requirement, and thus, 
have demonstrated substantial interests in the outcome of this 
proceeding to justify access to the administrative process.
    In light of the above, the Applicants have provided sufficient 
information and an adequate factual basis to establish they are 
directly affected by Washington State's vapor pressure and ANT 
requirements and, accordingly, are entitled to submit an application to 
PHMSA.

B. Vapor Pressure

    PHMSA finds that Washington State's vapor pressure limit is 
preempted. The requirement concerns both the ``classification'' and 
``handling'' of hazardous materials and is not ``substantively the 
same'' as the Federal regulations, and is therefore preempted by 49 
U.S.C. 5125(b)(1)(A). The requirement, moreover, is an obstacle to 
accomplishing and carrying out the HMTA and the HMR, and is therefore 
preempted by 49 U.S.C. 5125(a)(2).
Covered Subject Preemption--Classification
    The Applicants contend that Washington State's vapor pressure 
requirement designates a new class of crude oil based on its vapor 
pressure and that the State's requirement is not substantively the same 
as the HMR requirements for crude oil. PHMSA agrees.
    Federal hazardous material transportation law preempts a non-
Federal requirement on the ``designation, description, and 
classification'' of hazardous material that is not ``substantively the 
same'' as the Federal rules. 49 U.S.C. 5125(b)(1)(A).
    The current HMR requirements for the classification of unrefined 
petroleum

[[Page 29525]]

based products include proper classification, determination of an 
appropriate packing group, and selection of a proper shipping name and 
description of the material. The HMR contain detailed rules that guide 
an offeror through each of these steps in the classification process. 
See generally, 49 CFR 172.101 (The Hazardous Materials Table), 173.2-
173.41; 173.120, 173.121, 173.150, 173.242, 173. 243, and part 174 
(Railroads). However, there is not a Federal vapor pressure standard 
for the classification of unrefined petroleum-based products, such as 
crude oil. The Washington State law has set a State-wide vapor pressure 
standard of 9 psi for unrefined petroleum-based products, such as crude 
oil.
    Washington State's attempt to set a vapor pressure limit for crude 
oil constitutes a scheme for classifying hazardous materials that is 
not substantively the same as the HMR. Indeed, as noted further below, 
the Washington law is also squarely at odds with the agency's recent 
declaration that regulation of vapor pressure is neither necessary nor 
appropriate. The reasoning for this conclusion is more fully elaborated 
below. The Washington AG and other commenters contend that Washington's 
vapor pressure limit does not concern ``classification'' because it 
does not change the Federal classifications of crude oil. But the 
question under 49 U.S.C. 5125(b)(1)(A) is not whether a State law 
changes the Federal classifications of hazardous materials, but whether 
a State law imposes additional, different classifications. Washington's 
vapor pressure limit does just that, by creating a new class of crude 
oil that is subject to special requirements. The vapor pressure limit 
is therefore preempted under 49 U.S.C. 5125(b)(1)(A).
Covered Subject Preemption--Handling
    The Applicants also contend that by prohibiting facilities from 
loading or unloading crude oil into or from a rail tank car unless the 
oil has a vapor pressure of less than 9 psi, Washington has imposed a 
handling requirement that is not substantively the same as the HMR 
handling requirements for crude oil, and therefore is preempted. PHMSA 
agrees.
    Loading and unloading fall within the scope of ``handling,'' which 
is a covered subject for purposes of the HMTA preemption analysis. 49 
U.S.C. 5125(b)(1)(B). Under the ``substantively the same'' test, a non-
Federal requirement concerning a covered subject (i.e., handling), is 
preempted when it is not substantively the same as a requirement in the 
Federal hazmat law or regulation. 49 U.S.C. 5125(b)(1).
    The Department has extensive regulations governing the handling of 
Class 3 flammable liquids, including loading and unloading, during 
transportation. See generally, 49 CFR 173.2-173.41, and part 174 
(Railroads). However, there is no specific Federal prohibition on the 
handling of crude oil with a vapor pressure greater than 9 psi. 
Washington State's crude oil by rail vapor pressure law imposes a vapor 
pressure requirement on the loading and unloading of crude oil where 
the Federal law does not.
    The AG of Washington asserts that the State's vapor pressure 
requirement is not a handling regulation because it only regulates 
unloading functions at Washington State facilities after the crude oil 
has been delivered, transportation has ended, and the carrier has 
departed. He argues that because such post-delivery unloading is 
generally not regulated by the HMTA or HMR, the Washington law is not 
subject to preemption. As explained further below, PHMSA disagrees, as 
the AG of Washington does not accurately describe the Washington law, 
and ignores the law's significant upstream effects.
    PHMSA, in prior preemption determinations, has confirmed that 
Federal hazardous material transportation law and the HMR apply to 
hazardous materials that are in transportation in commerce, including 
loading, unloading and storage that is incidental to that 
transportation. See PD-9(R), California and Los Angeles County 
Requirements Applicable to the Onsite Handling and Transportation of 
Hazardous Materials, 60 FR 8774 (February 15, 1995), Decision on 
Petitions for Reconsideration, 80 FR 70874 (November 16, 2015) (a time-
restriction for unloading tank cars was preempted because unloading 
activities are ``handling,'' a covered subject); see also PD-12(R), New 
York Department of Environmental Conservation; Requirements on the 
Transfer and Storage of Hazardous Wastes Incidental to Transportation, 
60 FR 62527 (December 6, 1995), Decision on Petition for 
Reconsideration, 62 FR 15970 (April 3, 1997) (secondary containment 
requirement for the transfer or storage of hazardous wastes at transfer 
facilities preempted because it created confusion as to the 
requirements in the HMR and increased the likelihood of non-compliance 
with the HMR). Furthermore, the agency has determined that non-Federal 
requirements that purport to regulate ``facilities'' are subject to 
preemption when those requirements affect transportation-related 
activities such as loading, unloading, and storage of hazmat. Id.
    Since those decisions, PHMSA, through rulemaking, has clarified the 
applicability of the HMR to specific functions and activities, 
including hazardous materials loading and unloading operations. PHMSA, 
in a rulemaking, defined ``pre-transportation function'' to mean a 
function performed by any person that is required to ensure the safe 
transportation of a hazardous material in commerce. See ``Applicability 
of the Hazardous Materials Regulations to Loading, Unloading, and 
Storage,'' HM-223, 68 FR 61906 (October 30, 2003); Response to Appeals, 
70 FR 20018 (April 15, 2005).
    Thus, loading functions fall within the scope of Federal 
regulations when performed by any person, e.g., shipper or carrier, 
transporting a hazardous material. Id. In addition, because carrier 
possession of a hazardous material is a key aspect of the definition of 
``transportation'' under the HMR, loading functions that are performed 
by carrier personnel or by shipper personnel in the presence of the 
carrier are still considered ``loading incidental to movement'' and 
consequentially, are transportation functions. Id.
    Regarding unloading, if carrier personnel are present during the 
unloading of packaged hazardous materials from a transport vehicle or 
the unloading of a bulk package, such as a cargo tank or a rail tank 
car, into a storage tank or manufacturing process, then the operation 
is considered ``unloading incidental to movement'' of the hazardous 
material, and accordingly, is subject to regulation under the HMR. Id.
    The State of Washington relies on the ``carrier possession'' 
distinction for determining the applicability of the HMR in defense of 
its vapor pressure law. It argues that ``as a practical matter'' the 
law only affects unloading activities at Washington facilities, that 
the ``practice'' at Washington facilities is to unload oil only after 
carrier personnel have departed, and that the law therefore only 
regulates activities not subject to the HMR. PHMSA disagrees, for two 
reasons. First, regardless of what Washington characterizes as standard 
``practice,'' the Washington law on its face does not apply only to 
unloading after a carrier departs. The law also applies to loading 
within the State, and to unloading in the presence of carrier 
personnel; as noted above, these activities are unquestionably covered 
by the HMTA and HMR.

[[Page 29526]]

    Second, even though the law is written to only regulate loading and 
unloading at facilities in Washington, its practical effect is to 
regulate pre-transportation activities outside of Washington, as well 
as transportation itself. The administrative record and the facts 
contained therein as presented by numerous commenters, belies 
Washington State's claim that the scope of the vapor pressure 
requirement is either narrow or local. For example, the Washington law 
does not specify how a facility is to determine whether the oil it is 
loading or unloading has a vapor pressure of less than 9 psi. As such, 
it is likely that the vapor pressure of crude oil received by the 
facilities will have to be provided by the shipper. This essentially 
means that the crude oil would have to be sampled, tested, and treated 
at the source of production before it is loaded onto rail cars, even 
though there is no Federal requirement for either measuring vapor 
pressure or pre-treatment. Moreover, there is no Federal requirement 
for shippers of crude oil to communicate the material's vapor pressure 
to carriers or consignees when it is offered for transportation. Any 
conditioning of Bakken crude oil to a vapor pressure of less than 9 psi 
is not a post-production process since the oil must be pretreated or 
conditioned at the point of production and before loading, which 
clearly is a pre-transportation function. Of greater significance is 
the fact that the oil cannot be conditioned at Washington State 
facilities before it is unloaded from the railcars.
    In light of these facts, it is evident that upstream impacts are 
inevitable at the point of origin in the transportation network--and 
not downstream at the point of destination as the State of Washington 
contends. The reach of the State's legislative activity inevitably 
traces all the way back to the production activities to North Dakota 
and Montana. As such, we must find that the law imposes a requirement 
on shippers that was purposefully omitted from the current text of the 
HMR. Washington's law affects the handling and transportation of crude 
oil because the oil producers cannot load crude-by-rail destined for 
Washington State refineries unless it has a vapor pressure of not 
greater than 9 psi, and that requirement can only be satisfied at the 
point of production before the material is placed into the 
transportation network. It is also noteworthy that there currently is 
no Federal requirement for shippers of crude oil to communicate a Class 
3 material's vapor pressure to carriers or consignees downstream when 
it is offered for transportation.
    Simply stated, before Washington State enacted this law, there were 
no special restrictions on the transportation of crude oil with a vapor 
pressure greater than 9 psi. However, after the law, handling, 
including loading and unloading, of crude-by-rail is directly affected, 
and potentially banned altogether unless it meets Washington State's 
vapor pressure requirement. Therefore, Washington State's vapor 
pressure limit is a transportation handling requirement that is not 
substantively the same as the Federal requirements covering the same 
subject. Moreover, in light of the agency's withdrawal of the ANPRM, 
the Department has taken specific action to not require vapor pressure 
limits. Accordingly, the Washington law cannot stand and is therefore 
preempted under 49 U.S.C. 5125(b)(1)(B).
Obstacle Preemption
    The Applicants contend that Washington's vapor pressure requirement 
is an obstacle to accomplishing and carrying out the HMTA and the HMR, 
and is therefore preempted under 49 U.S.C. 5125(a)(2). PHMSA agrees.
    When Congress enacted the HMTA, it made several findings that 
emphasized the importance of uniform regulations governing the 
transportation of hazardous materials. For example, Congress noted that 
many States and localities had enacted laws and regulations which 
varied from Federal law and regulations pertaining to the 
transportation of hazardous materials, which created the potential for 
transferring unreasonable hazards to other jurisdictions and created 
confusion for shippers and carriers attempting to comply with multiple 
and conflicting requirements. Due to the potential risks to life, 
property, and the environment posed by unintentional releases of 
hazardous materials, Congress determined that consistency in laws and 
regulations governing the transportation of hazmat was necessary and 
desirable, and that PHMSA's efforts to achieve greater uniformity are 
necessary to promote the public health, welfare, and safety at all 
levels. Thus, the Congress found it desirable that only Federal 
standards regulate the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce. See Colorado Pub. Util. 
Comm'n v. Harmon, 951 F.2d 1571, 1580 (10th Cir. 1991).
    In light of these Congressional findings, it is widely understood 
that a primary purpose of the HMTA is regulatory uniformity that will 
be achieved through the HMTA's preemption provisions. Id. Regulatory 
uniformity is frustrated when State and local governments adopt 
requirements like those at issue in this proceeding.
    Several principles of regulatory uniformity have been developed 
through agency interpretations and case law. First, State and local 
requirements that impede hazardous materials transportation that is 
being conducted in accordance with the Federal requirements constitute 
inconsistent restraints on such transportation. Second, transportation 
carried out within the Federal framework of the HMTA and HMR is 
presumptively safe and additional State or local requirements 
concerning matters covered by Federal law or regulation are neither 
necessary nor appropriate. Finally, where the Department has examined 
an area otherwise within its authority to adopt regulations and has 
declined to regulate, State and local requirements in that area may be 
preempted where they have adverse impacts on the Federal regulatory 
scheme and the transportation that occurs thereunder. See generally, 
PD-6(R), Michigan Marking Requirements for Vehicles Transporting 
Hazardous and Liquid Industrial Wastes, 59 FR 6186 (Feb. 9, 1994); 
Inconsistency Ruling (IR)-8, State of Michigan Rules and Regulations 
Affecting Radioactive Materials Transportation, 49 FR 46637 (Nov. 27, 
1984), decision on appeal, 52 FR 13000 (April 20, 1987); IR-15(A), 
Vermont Rules for Transportation of Irradiated Reactor Fuel and Nuclear 
Waste, 49 FR 46660 (Nov. 27, 1984), decision on appeal 52 FR 13062, 
13063 (April 20, 1987); quoted and followed, IR-19; IR-19, Nevada 
Public Service Commission Regulations Governing Transportation of 
Hazardous Materials, 52 FR 24404, 24407 (June 30, 1987), decision on 
appeal, 53 FR 11600 (April 7, 1988), affirmed in IR-19(A) and Southern 
Pac. Transp. Co. v. Public Serv. Comm'n of Nevada, 909 F.2d 352 (9th 
Cir. 1990), reversing No. CV-N-86-444-BRT (D. Nev. 1988).
    In light of its jurisdictional responsibilities and consistent with 
court precedents, the Department has taken a system-wide approach to 
achieving safety of the Nation's transportation systems that includes 
regulatory and non-regulatory actions to ensure the safe and secure 
transportation of crude oil by rail. As previously discussed, these 
actions resulted in the addition of new sampling and testing 
requirements to the HMR; an assessment of the merits of setting a 
Federal vapor pressure limit; and the commissioning of the Sandia 
Study. The volatility and vapor pressure

[[Page 29527]]

of crude oil have been important characteristics studied by the agency 
throughout this entire process.
    PHMSA, after closely examining the results and conclusions of the 
Sandia Study (as discussed earlier in Section VI.A), and in 
consideration of the public comments to the ANPRM from industry, 
stakeholders, and other interested parties, withdrew the ANPRM. PHMSA 
determined that issuance of any regulation setting a vapor pressure 
limit for unrefined petroleum-based products was not justified because 
such a regulation would not lessen risks associated with the transport 
of crude oil by rail. The agency's withdrawal of the ANPRM is the most 
definitive statement to the regulated community and the public that 
there is no need for a Federal regulation that sets a vapor pressure 
limit for unrefined petroleum-based products within the HMR.\36\
---------------------------------------------------------------------------

    \36\ See Supra note 21.
---------------------------------------------------------------------------

    In summary, the Department and PHMSA have pursued a comprehensive 
approach to address volatility of crude-by-rail, and have determined 
that existing Federal requirements are adequate to ensure the safe 
transportation of crude oil, particularly in light of the compelling 
conclusions of recent research activities discussed above. Therefore, 
State and local provisions that fundamentally alter the requirements 
for the same hazardous material are clearly obstacles to the 
accomplishment and execution of the objectives of the HMTA and HMR.
    Having considered all of the implications of Washington State's 
unilateral regulatory action setting a vapor pressure limit for crude 
oil, the agency must conclude that the State's action epitomizes the 
type of patchwork State regulation that Congress sought to avoid when 
it enacted the HMTA and established a framework of uniform national 
regulations for regulating the transportation of hazardous materials. 
The Washington State vapor pressure requirement, if allowed to persist, 
would set an alarming precedent. Other State and local jurisdictions 
would be encouraged to enact their own vapor pressure limits for crude 
oil. The resultant multiple and conflicting requirements will undermine 
the uniform Federal regulatory scheme. Moreover, a multitude of 
differing regulations in this area would surely create uncertainty and 
confusion for offerors. And the likelihood of copycat regulation of 
crude oil vapor pressure is not merely speculative as evidenced by the 
administrative record for this proceeding. PHMSA is aware of one State 
legislature that has introduced a similar bill regulating vapor 
pressure for oil or gas, and at least six States that have advocated 
for a vapor pressure limit.\37\
---------------------------------------------------------------------------

    \37\ See House Bill 4105, 80th Oregon Legislative Assembly--2020 
Regular Session (February 3, 2020), https://olis.leg.state.or.us/liz/2020R1/Downloads/MeasureDocument/HB4105/Introduced (last visited 
February 12, 2020). In this proceeding, the Attorneys General of New 
York, California, Maryland, and New Jersey submitted comments 
against preemption. In addition, the Attorneys General of 
California, Illinois, Maine, and Maryland filed joint comments with 
the Attorneys General of New York and Washington, supporting a 
national vapor pressure standard in the ANPRM proceeding.
---------------------------------------------------------------------------

    Furthermore, a patchwork of varying and conflicting State and local 
regulations would likely increase risk by exporting potentially 
unreasonable hazards to other jurisdictions as offerors employ various 
avenues of compliance either through rerouting shipments; seeking 
alternate markets or modes of transportation; or avoidance of a 
jurisdiction altogether. This last option is particularly troubling as 
it resembles a de facto ban on transportation.
    Proponents of the law insist Washington State has a legitimate 
public interest to protect its citizens from oil train fires and 
explosions, but in the context of the transportation of crude oil by 
rail, a State cannot use safety as a pretext for inhibiting market 
growth or instituting a de facto ban on crude oil by rail within its 
borders.
    Notwithstanding the State of Washington's interest in the welfare 
and safety of its citizens, any State laws supporting those interests 
that implicate the transportation of hazardous materials, must not 
conflict with the objectives of the HMTA. Here, we find that the vapor 
pressure requirement is an obstacle to carrying out the HMTA and HMR--
it not only hinders the movement of hazardous materials but also 
creates unnecessary delays in direct conflict with HMTA. Accordingly, 
the law is preempted.

C. ANT Requirement

    One remaining question before the agency is whether Washington 
State's ANT requirement regulates the same subject covered by the 
Federal requirements for the requisite shipping paper's material 
description and emergency response information, and if so, whether the 
State's requirement is substantively the same as the HMR requirements 
for crude oil. Alternatively, we must consider whether Washington's ANT 
requirement is inconsistent with the HMR rule governing HHFT 
information sharing notification for emergency response planning, or is 
otherwise an obstacle to accomplishing and carrying out the HMTA.
    Federal hazardous material transportation law preempts a non-
Federal requirement for the ``preparation, execution, and use of 
shipping documents'' and ``requirements related to the number, content, 
and placement'' of those documents, that are not ``substantively the 
same'' as the Federal rules. 49 U.S.C. 5125(b)(1)(C).
    The HMTA and HMR prescribe the information and documentation 
requirements for the safe transportation of hazardous materials. See 
generally, 49 CFR part 172, subparts C and G; part 174 (railroads). 
This includes the preparation, execution, and use of shipping 
documents. Under the HMR, offerors of a hazardous material for 
transportation are required to prepare a shipping paper to accompany 
the material while it is in transportation with information describing 
the material and emergency response information. In general, the 
Federal rules do not require additional information, documentation, or 
advance notification for the transportation of hazardous materials. 
PHMSA recently adopted new HHFT information sharing requirements in 
order to ensure that safety and security planning is occurring for 
crude-by-rail shipments. 49 CFR 173.41. The information sharing 
requirements include a weekly estimate of the number of trains expected 
to operate through the local jurisdiction, a description of the 
hazardous material and all applicable emergency response information 
(consistent with the HMR requirements), and a railroad point of 
contact. Updates are only required when volume changes more than 
twenty-five percent. Id.
    We note that Washington State amended the ANT requirement to add 
new data elements, ``type'' and ``vapor pressure'' to the ANT database. 
Before this amendment, the data elements that were being reported 
generally consisted of the same data that is required under the HHFT 
notification requirements. For example, route, product description, and 
quantity. It is noteworthy, that this information is either necessary 
or optional information under the HMR, or otherwise ascertained from 
the shipping paper that is required to accompany a shipment of crude 
oil--except vapor pressure. Similarly, with the addition of these new 
data elements and the different reporting threshold, the ANT 
requirement is different from the HHFT notification requirements, 
albeit not to the extent that commenters have described it.

[[Page 29528]]

    The State of Washington asserts that the ANT requirement is a local 
emergency preparedness measure that applies only to in-state facilities 
that unload crude-by-rail shipments, with no attendant reporting duties 
for shippers or carriers. Yet, it is unclear from where, and whom, the 
facilities will get the crude oil's ``type'' and ``vapor pressure'' 
data in order to comply with the amended ANT requirement. A reasonable 
inference could be made that this information must be provided by the 
shipper or carrier. Notwithstanding, we cannot ignore the fact that 
none of the refineries that submitted comments in this proceeding 
provided any meaningful information regarding how they have been 
complying with the current iteration of the requirement, or how they 
intend to comply with the amended law. Without more information, it is 
unclear whether there is a sufficient nexus to the ANT requirement and 
the Federal requirements that fully implicates HMTA preemption. 
Therefore, on balance, PHMSA finds that the administrative record 
regarding the ANT requirement is insufficient to make a determination 
whether the requirement is preempted under the HMTA.

VII. Ruling

    PHMSA finds that Washington State's vapor pressure requirement 
setting a vapor pressure limit of 9 psi for crude oil, has created a 
scheme for classifying a hazardous material that is not substantively 
the same as the Federal hazardous materials regulations. PHMSA also 
finds that the vapor pressure requirement is a handling requirement 
that is not substantively the same as existing Federal requirements. 
Furthermore, PHMSA has determined that the vapor pressure requirement 
is an obstacle to accomplishing and carrying out the HMTA and HMR, and 
is, therefore preempted.
    In addition, PHMSA finds that the administrative record regarding 
the ANT requirement is insufficient to make a determination whether the 
requirement is preempted under the HMTA.

VIII. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
determination may file a petition for reconsideration within 20 days of 
publication of this determination in the Federal Register. If a 
petition for reconsideration is filed within 20 days of publication in 
the Federal Register, the decision by PHMSA's Chief Counsel on the 
petition for reconsideration becomes PHMSA's final agency action with 
respect to the person requesting reconsideration. See 49 CFR 
107.211(d).
    If a person does not request reconsideration in a timely fashion, 
then this determination is PHMSA's final agency action as to that 
person, as of the date of publication in the Federal Register.
    Any person who wishes to seek judicial review of a preemption 
determination must do so by filing a petition for review in the United 
States Court of Appeals for the District of Columbia Circuit, or in the 
United States Court of Appeals for the circuit in which the petitioner 
resides or has its principal place of business, within 60 days after 
the determination becomes final with respect to the filing party. See 
49 U.S.C. 5127(a).
    The filing of a petition for reconsideration is not a prerequisite 
to seeking judicial review of this decision under 49 U.S.C. 5127(a).

    Issued in Washington, DC, on May 11, 2020.
Paul J. Roberti,
Chief Counsel.
[FR Doc. 2020-10381 Filed 5-14-20; 8:45 am]
BILLING CODE 4910-60-P


