Oil Train Safety Megathread. Updated July 30, 2023

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67. Hazardous Materials: Washington Crude Oil By Rail-Vapor Pressure Requirements

Hazardous Materials: Washington Crude Oil By Rail-Vapor Pressure Requirements
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Supplementary Information

I. Application for a Preemption Determination

The State of North Dakota and the State of Montana have applied to PHMSA for a determination whether Federal hazardous material transportation law (HMTA), 49 U.S.C. 5101 et seq., preempts the State of Washington's Engrossed Substitute Senate Bill 5579, Crude Oil By Rail—Vapor Pressure. Specifically, North Dakota and Montana allege the law, which purports to regulate the volatility of crude oil transported in Washington state for loading and unloading, amounts to a de facto ban on Bakken  (1) crude.

North Dakota and Montana present two main arguments for why they believe Washington's law should be preempted. First, North Dakota and Montana contend that the law's prohibition on the loading or unloading of crude oil with more than 9 psi vapor pressure 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 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 pre-notification requirements are an obstacle. Last, North Dakota and Montana contend that Washington'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, North Dakota and Montana contend the State of Washington's Engrossed Substitute Senate Bill 5579, Crude Oil By Rail—Vapor Pressure, 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.
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