{"operation":"document","citation":"24-0018","title":"Mr. Fred Storer — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2024-05-28","effective_on":null,"summary":"24-0018 concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0018.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0018.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0018","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-05/240018.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMay 29, 2024\nMr. Fred Storer\n111 W 5th Street, Apt. 803\nTulsa, OK 74103\nReference No. 24-0018\nDear Mr. Storer:\nThis letter is in response to your February 6, 2024, letter and correspondence with the Pipeline\nand Hazardous Materials Safety Administration (PHMSA) requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of\n“private track.\n” The HMR defines “private track” in § 171.8 as: (1) track located outside of a\ncarrier’s right-of-way, yard, or terminals where the carrier does not own the rails, ties, roadbed,\nor right-of-way; or (2) track leased by a railroad to a lessee, where the lease provides for, and\nactual practice entails, exclusive use of that trackage by the lessee and/or a general system\nrailroad for purpose of moving only cars shipped to or by the lessee, and where the lessor\notherwise exercises no control over or responsibility for the trackage or the cars on the trackage.\nYou present two different scenarios concerning the determination of “private track” in\naccordance with the definition provided in § 171.8.\nQ1. In the first scenario (i.e., the Downtown location), the South Kansas and Oklahoma\nRailroad (SKOL Railroad)—i.e., the lessor—leases track to Centennial Energy (i.e., the\nlessee) for a butane transloading operation. The transloading of the butane is conducted\nwith no intervention or oversight by SKOL Railroad, and SKOL Railroad exercises no\ncontrol or responsibility over the trackage or rail cars involved in the butane transloading\noperation—all of which is exclusively carried out by Centennial Energy. You ask\nwhether this scenario would meet the definition of “private track” in § 171.8.\nA1. Based on the scenario as described in your letter, the answer is yes. As previously stated,\none part of the definition for “private track” in § 171.8 is a track leased by a railroad (i.e.,\nSKOL Railroad), to a lessee, (i.e., Centennial Energy), where the lease provides for, and\nin practice entails, exclusive use of that trackage by the lessee for the purpose of moving\nonly rail cars shipped to or by the lessee, and where the lessor otherwise exercises no\ncontrol over or responsibility for the trackage or the cars on the trackage. Therefore,\nbased on the scenario described in your letter, it is the opinion of this Office that the\nscenario at the Downtown location meets the definition of “private track” in § 171.8.\nQ2. In the second scenario (i.e., the East Pine location), butane is shipped by BNSF Railway,\nInc. directly to US Rail and Logistics (USRL). As presented in your letter, the\ntransloading of the butane occurs exclusively on track owned by BNSF. Furthermore,\nyour letter states that BNSF—as the carrier—exercises complete control of the trackage\n\n<<>>\n\nused during the transloading operation. You ask whether this scenario would meet the\ndefinition of “private track” in § 171.8.\nA2. Based on the scenario as described in your letter, the answer is no. As previously stated,\n“private track” is defined in § 171.8 as “track located outside of a carrier’s right-of-way,\nyard, or terminals where the carrier does not own the rails, ties, roadbed, or right-of-\nway.” Therefore, based on the scenario described in your letter, it is the opinion of this\nOffice that the scenario at the East Pine location does not meet the definition of “private\ntrack” in § 171.8.\nHowever, if the trackage where the transloading occurs were owned by USRL or were\nleased to USRL by BNSF with exclusive use by the lessee (i.e. USRL), for the purpose of\nmoving only rail cars shipped to or by the lessee, and the lessor (i.e., BNSF) exercised no\ncontrol over or responsibility for the trackage or cars on the track, this trackage would\nmeet the definition of “private track” in § 171.8. Lastly, PHMSA views the 745-ft. stretch\nof track (owned by USRL) as “private track” based on the information you shared\nregarding lease of that track by the owner.\nI hope this information helpful. Please contact us if we can be of further assistance.\nSincerely,\nSteven Andrews\nActing Chief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<>>\n\nJacobson\n24-0018\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Dodd, Alice (PHMSA)\nSubject: FW: Tulsa\"s Butane Risks reply to PHMSA\nDate: Tuesday, March 19, 2024 3:30:13 PM\nAttachments: CONCERNED CITIZENS - LEGAL ANALYSIS TULSA BUTANE STORAGE AND TRANSLOADING - FINAL (1).pdf\nButtigieg Letter .pdf\nPHMSA Response Letter to Mr. Fred Storer.pdf\n2.6.2024 reply to PHMSA.pdf\nimage002.png\nTulsa Response Letter (March 4 2024 draft).docx\nAlice,\nPlease enter this into the system as a request for a letter of interpretation and assign to a specialist.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460 (desk)\n202-365-4684 (cell)\nFrom: Kelley, Shane (PHMSA) \nSent: Monday, March 4, 2024 2:20 PM\nTo: DerKinderen, Dirk (PHMSA) \nSubject: Fwd: Tulsa's Butane Risks reply to PHMSA\nShane C. Kelley\nDirector, Standards and Rulemaking\nOffice of Hazardous Materials Safety\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\nOfffice: (202) 366-8553\nMobile: (202) 308-4312\nFrom: Horsley, Adam (PHMSA) \nSent: Monday, March 4, 2024 2:05:42 PM\nTo: Davis, Carey (PHMSA) \nCc: Kelley, Shane (PHMSA) \nSubject: FW: Tulsa's Butane Risks reply to PHMSA\nHi Carey,\nAfter reviewing this, Mr. Storer seems to be asking for a letter of interpretation on whether the\ntransloading in Tulsa is taking place on private track. I would recommend that we refer this to Shane\n\n<<>>\n\nKelley’s group to begin that process. I’m attaching a draft letter for your consideration. Please let me\nknow if you have any questions.\nThanks,\n- Adam\nAdam Horsley\nAssistant Chief Counsel, Office of Chief Counsel\nUS Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, S.E., Washington, D.C. 20590\nOffice: 202.366.8000 ◊ Facsimile: 202.366.7041\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended\nonly for the named recipient(s) above and may contain information that is privileged, confidential,\nattorney work product or otherwise legally protected. If you have received this message in error, or are\nnot the named recipient(s), please immediately notify me and permanently delete this e-mail message and\nany attachments from your workstation and/or network mail system.\nFrom: Davis, Carey (PHMSA) \nSent: Monday, February 12, 2024 8:43 AM\nTo: Horsley, Adam (PHMSA) \nSubject: FW: Tulsa's Butane Risks reply to PHMSA\nFrom: Jones, Jessie Jane CTR (PHMSA) \nSent: Tuesday, February 6, 2024 2:20 PM\nTo: Davis, Carey (PHMSA) ; Quade, William (PHMSA)\n\nCc: Doud, Joshua (PHMSA) ; Manno, Anthony (PHMSA)\n; Jones, Camille CTR (PHMSA) ; Schaefer,\nEmily CTR (PHMSA) \nSubject: RE: Tulsa's Butane Risks reply to PHMSA\nHi All,\nMr. Storer forgot to update his response letter. Reattaching all the previous attachment to include\nhis reply.\nThank you,\n\n<<>>\n\nJessie\nFrom: Jones, Jessie Jane CTR (PHMSA)\nSent: Tuesday, February 6, 2024 1:10 PM\nTo: Davis, Carey (PHMSA) ; Quade, William (PHMSA)\n\nCc: Doud, Joshua (PHMSA) ; Manno, Anthony (PHMSA)\n; Jones, Camille CTR (PHMSA) ; Schaefer,\nEmily CTR (PHMSA) \nSubject: FW: Tulsa's Butane Risks reply to PHMSA\nHi Carey and Bill,\nAttached is a reply with attachments from Mr. Fred Storer to PHMSA’s response to his letter. I\ntransmitted the signed letter to him yesterday.\nPlease advise on how to proceed.\nThank you,\nJessie\nFrom: Fred Storer \nSent: Tuesday, February 6, 2024 1:03 PM\nTo: Jones, Jessie Jane CTR (PHMSA) \nSubject: Tulsa's Butane Risks reply to PHMSA\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do\nnot click on links or open attachments unless you recognize the sender and know the content\nis safe.\nMrs. Jones,\nFred Storer\nPlease deliver this letter to Mr. Carey T. Davis, Office of Hazardous Materials Safety.\n\n<<>>\n\nMarch X, 2024\nMr. Fred Storer\n111 W 5th Street, Apt. 803\nTulsa, Oklahoma 74103\nDear Mr. Storer\nThank you for your February 6, 2024 letter requesting that the Pipeline and Hazardous\nMaterials Safety Administration provide a statement that the butane transloading operations\nyou identified in Tulsa, Oklahoma are taking place on “private track”. I am referring your\nletter to PHMSA’s Standards and Rulemaking Division as a request for a letter of\ninterpretation on this question.\nI hope this is helpful. If you have questions regarding the process for seeking a letter of\ninterpretation, please contact Dirk DerKinderen, Chief, Standards Development Branch, by\nphone at (202) 366-4460 or via email at Dirk.DerKinderen@dot.gov.\nSincerely,\nCarey T. Davis\nDeputy Associate Administrator\nField Operations\nOffice of Hazardous Materials Safety\n\n<<>>\n\nFebruary 6, 2024\nMr. Carey T. Davis\nDeputy Associate Administrator\nField Operations\nOffice of Hazardous Materials Safety\nU.S. Department of Transportation\nWashington, DC 20590\nC/O Jones, Jessie Jane CTR (PHMSA) jessie.jones.ctr@dot.gov\nSubject: Tulsa butane hazards\nDear Mr. Davis,\nThank you for responding to my November 12, 2023, letter to Secretary Buttigieg.\nThis letter addresses the two butane transloading operations in the city of Tulsa. I plan to\naddress the consequential butane safety issues in a future letter.\nAlthough this has been discussed as a railroad preemption issue, you have explained PHMSA\nlacks jurisdiction if the operations are conducted on “private track” and “PHMSA needs more\ninformation to determine whether the Tulsa area transloading sites meet the definition of\nprivate track”.\nI enclosed with my letter to Secretary Buttigieg a redacted letter which provided “private track”\ninformation. I am now able to provide a complete copy of the letter addressed to “Concerned\nCitizens” from Mr. Peter A. Pfohl, Slover & Loftus LLP .\n“Concerned Citizens” is a group of seven Tulsans that retained Mr. Pfohl to address this\nimportant public safety issue.\nI respectfully request that PHMSA provide a statement that the butane transloading operations\nare “private track”.\nPlease advise me if additional information is required.\nSincerely,\nFred Storer\n918-397-3456\nffstorer@gmail.com\n\n<<>>\n\nAttachments:\nMarch 1, 2023, letter from Peter A. Pfohl to Concerned Citizens\nNovember 12, 2023, Fred Storer letter to Secretary Buttigieg\nFebruary 5, 2024, Carey T. Davis, DOT, letter to Fred Storer\nNote for those receiving copies: If the transloading operations are on “private track” PHMSA\nlacks jurisdiction, typical railroad preemption does not apply, and the city is free to enforce all\nzoning and safety regulations.\nCopies of this letter have been furnished to the following: Tulsa Mayor, City Attorney, The City\nCouncil, Mr. Peter A. Pfohl, Concerned Citizens, Explorer Pipeline Company, etc.\n\n<<>>\n\n•\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nFebruary 5, 2024\nMr. Fred Storer\n111 W 5th Street, Apt. 803\nTulsa, OK74103\nDear Mr. Storer:\nThank you for your letter to Secretary of Transportation Pete Buttigieg and the United States\nDepartment of Transportation (Department), regarding butane railcar storage and transloading\nactivities being performed at two sites in the vicinity of Tulsa, Oklahoma (City). The Pipeline\nand Hazardous Materials Safety Administration (PHMSA) is the Agency within the\nDepartment responsible for administering federal pipeline and hazardous materials laws and\nregulations, and the Secretary has asked me to respond on his behalf.\nIn your letter, you highlighted several issues identified by a group of concerned citizens related\nto the transportation of energy and other hazardous materials and ask for the Department's\nguidance on pipeline safety law and whether federal law preempts the City's local zoning\nlaws. You also provided a memorandum regarding Surface Transportation Board preemption.\nYour letter also noted that Tulsa officials are not enforcing the City's local zoning laws against\nthe operators of the transloading sites because they believe the City's laws are preempted by\nthe Surface Transportation Board under the ICC Termination Act of 1995. In addition, you\nindicated local government needs to understand whether railcar parking and transloading of\nhazardous materials preempts local codes. Finally, you have expressed safety concerns\nregarding encroachment at the right-of-way for Explorer Pipeline in Oklahoma, as well as\nconcerns about the lack of public awareness.\nRegarding federal preemption, the Department has preemption authority under the Federal\nHazardous Materials Transportation Law, in addition to the preemption authority of the\nSurface Transportation Board.\nPHMSA also has delegated authority to make a preemption determination as to whether a nonfederal\nrequirement is preempted under the Federal Hazardous Material Transportation Law\n(HMTA), 49 U.S.C. 5101 et seq. HMTA and its implementing regulations-the Hazardous\nMaterials Regulations (HMR)-apply to persons who transport or cause hazardous materials\nto be transported in commerce and to pre-transportation and transportation functions.\nTransloading operations and storage incidental to movement generally are regulated\ntransportation functions, but there are some exceptions. For example, pursuant to 49 C.F.R. §\n\n<<>>\n\nSit sw Region Community Liaisons have worked with you to\naddress your safety concerns, including your concerns about butane injections and Explorer's\npublic awareness in Tulsa. Also, on June 13, 2022, the Vice President of Health, Safety,\nSecurity and Environment and the Public Awareness Administrator at Explorer Pipeline met\nwith you in Tulsa to discuss these items. Finally, PHMSA's Central Region Director has been\ncommunicating with you since January 2023 in an effort to address your concerns.\nWe appreciate and value your commitment to pipeline safety. PHMSA will be follow up with\nExplorer Pipeline again on these matters to ensure compliance. If PHMSA finds any issue of\nnoncompliance with the federal pipeline safety regulations, or other potential safety or\nintegrity issues, PHMSA may exercise its enforcement authority to require the company to\ntake appropriate corrective measures.\nIn addition, thank you for your suggestion to reflect differences between types of hazardous\nliquids in the pipeline safety regulations. Presently, the regulations at 49 C.F.R. part 195 apply\nto pipelines transporting petroleum, petroleum products, anhydrous ammonia, ethanol and\nother non-petroleum fuels (including biofuel), and supercritical carbon dioxide. In general, the\nregulations apply equally to the transportation of all these materials, but there are a few\ndifferentiations. For example, the regulations include specific requirements for pipelines\nPHMSA will consider your suggestion to explicity identify dient in the etmosphere\nI hope this information is helpful. If you need further assistance, please feel free to contact\nDamon Hill, PHMSA's Deputy Director of Governmental, International, and Public Affairs,\nby phone at 202-366-4424 or via email at damon.hill@dot.gov.\n1 The HMR defines private track as (i) Track located outside of a carrier's right-of-way, yard, or terminals where\nthe carrier does not own the rails, ties, roadbed, or right-of-way, or (ii) Track leased by a railroad to a lessee,\nwhere the lease provides for, and actual practice entails, exclusive use of that trackage by the lessee and/or a\ngeneral system railroad for purpose of moving only cars shipped to or by the lessee, and where the lessor\notherwise exercises no control over or responsibility for the trackage or the cars on the trackage. See 49 C.F.R. §\n171.8.\n\n<<>>\n\n\n\n<<>>\n\nNovember 12, 2023\nThe Honorable Pete Buttigieg\nSecretary of Transportation\n1200 New Jersey Ave SE\nWashington DC 20590\nTulsa’s butane risks\nDear Secretary Buttigieg,\nIn 2015 a butane transloading operation began at a rail spur in the historic Greenville\nneighborhood within sight of Tulsa’s city hall. Semis then moved the butane 14 miles across\nmetro Tulsa to a terminal located at Explorer Pipeline’s Glenpool, Oklahoma, tank farm where it\nwas and is blended into a flowing stream of diluent destined for the Canadian tar sands.\nThis butane business which benefits the four owners of Explorer Pipeline and is essential for the\nexport of Canadian tar involves risks which are regulated by DOT including preemption of\nfederal railroad rules and hazardous pipeline regulations. This letter will summarize the history\nand issues for the benefit of the DOT and request DOT’s assistance in mitigating the risks.\n2015 to October 2017\nAlthough EPA Risk Management Plans including Offsite Consequence Analysis (40 CFR 68) were\nfiled by the initial operator, the transloading operation was not recognized by the city of Tulsa. It\nwas and is in clear violation of the city’s zoning code.\nOctober 2017\nThe city was considering using a city owned brownfield site contiguous with the rail spur for a\nBMX cycle sport venue which was expected to attract families from across the country. The\nconflict between the potential hazard and exposure of BMX participants was recognized by the\ncity.\nJanuary 2018\nLocal media reported on the hazard and the dialogue between the transloading operator and\nthe city. Without resolving the conflict, the city built and opened the BMX venue, therefore,\naccepting exposure to the risks described in the facility’s Risk Management Plan. In accordance\nwith the RMP rules (40 CFR 68) the Offsite Consequence damage distance was reported as 0.4\nmiles based on the release of the contents of a single railcar, one of 26.\n\n<<>>\n\nJanuary 2022\nAs the BMX facility was completed and opened, a second transloading facility was opened 3.5\nmiles to the east, it was also in violation of the city zoning code, a poor neighborhood with 1700\npeople living in the RMP explosion damage distance.\nNovember 2022\nAlthough general opposition to butane transloading was expressed by the city council, the city\nattorney believed the city’s rules were preempted by federal railroad law. Lay people attempting\nto understand railroad law and regulations discovered the city’s rules may not be preempted.\nAn expert opinion was needed. Seven prominent citizens funded an opinion by railroad law\nexpert. The expert’s opinion confirmed the city’s rules are not preempted and the city attorney\nsubsequently agreed with the expert. The city is reported to have retained the expert, but the\ncity has still not acted to enforce its zoning and fire codes. (A paper copy of the expert’s opinion\nwas attached to Secretary Buttigieg’s copy. The expert’s name and his qualifications are\nredacted at the request of the group that paid for the opinion. However, I am advised the city\nattorney has the complete document. Google is blocking electronic copies, please contact Fred\nStorer for a copy.)\nLocal rules are all there is when it comes to the location of parking of and transloading from\nhazardous railcars. The assistance of DOT is necessary to clarify the rules to make determination\nof federal preemption straight forward.\nFate of Butane\nThree to four semi loads are required to empty a butane railcar. The trip to Glenpool is not\nwithout risk, a loaded semi turned over when making a left turn across the north bound lane of\nU.S. 75 on March 14, 2023. All butane semis must make this turn.\nAt Glenpool the butane is unloaded to active storage and then injected into a passing diluent\nstream in route to Canada. The technology used for butane injection accurately raises the vapor\npressure to 15 psi, about twice the vapor pressure of gasoline. Of the transportation fuels\nExplorer was built to move, motor fuel gasoline was the highest vapor pressure product\ntransported.\nFrom: Explorer Pipeline Safety Data Sheets\nGasoline SDS # EXPL-2 Diluent SDS # EXPL-15\nVapor Pressure at 25 deg C 400 mm Hg 510-760 mm Hg\n\n<<>>\n\nFlash Point -40 deg F -70 deg F\nBoiling Point (760 mm Hg) 104 deg F 84 deg F\nA leak of 15 psi diluent would flash butane significantly extending the ignition envelope over\ngasoline.\nExplorer’s Incident Experience\nMarch 9, 2000, Explorer lost 564,000 gallons of gasoline [47,000 gas station fill-ups] about 45\nmiles northeast of Dallas near Greenville, Texas. A smart pig had been run in 1997 and the\npipeline passed that inspection. The NTSB concluded (Pipeline Accident Number: DCA-00-MP-\n005) “... the probable cause of the pipeline failure was corrosion-fatigue cracking that initiated\nat the edge of the longitudinal seam weld at a likely pre-existing weld defect. Contributing to\nthe failure was the loss of pipe coating integrity.”\nThe Greenville failure, Explorer’s largest to date, was in a rural area and did not find an ignition\nsource. A 15-psi diluent release of that magnitude in Tulsa would have been much more likely to\nresult in disastrous consequences.\nExplorer’s Incidents from 1986 to 10/29/2023 as reported to PHMSA.\nIncident Cause Type All Reports Significant Serious\nAll Other 15 9 0\nCorrosion 19 9 0\nExcavation Damage 12 10 0\nIncorrect Operation 47 7 0\nMaterial/Weld/Equip Failure 106 26 0\nNatural Force Damage 7 2 0\nOther Outside Force Damage 1 0 0\nTotal Reported 207 63 0\nGreenville was reported as Significant but not Serious. Significant reports average 1.7 per year\non Explorer’s system.\nRight-of-way encroachment\nExplorer’s rights-of-way were obtained by negotiation and condemnation across open land\nsouth of Tulsa and north of Broken Arrow, Oklahoma. The easements give Explorer adequate\nauthority to prevent encroachment. However, shortly after the pipeline became operational in\n1972 subdivision surveys began and plats were filed with local governments that encouraged\nencroachment.\n\n<<>>\n\nExamples extracted from typical plats are shown here:\nSun Medow II\nSun Medow III\n\n<<>>\n\nThe pipeline easements are at the back of the lots and centered on the pipeline. Lot lines then\nresult in cross fencing. Time passes and the pipeline is forgotten, encroachment is common, and\nan emergency response would be compromised. Stake holders lack knowledge and\nencroachment, particularly privacy fences, can hide inappropriate activities including sabotage.\nToday, Explorer’s website reflects right-of-way (ROW) best practices\n(https://www.expl.com/report-right-of-way-encroachment/ ).\n“Unauthorized building or planting in the pipeline right-of-way is known as\nencroachment. Explorer regularly conducts maintenance to trim trees and remove shrubs\nor structures that are on the right-of-way. We need to be able to clearly view the pipeline\ncorridor during aerial or foot patrols as part of our safety practices. If you see trees,\nplants or structures including sheds located near the pipeline, email us\nat row@expl.com.”\nIn Tulsa County Explorer does not conduct maintenance to trim trees and remove shrubs or\nstructures.\nExplorer’s website regarding cross fencing (Microsoft Word - EPL-331 Encroachment\nSpecification Revised (002).docx (expl.com) :\n“8. FENCES – BARRIERS – WALLS\nA) Privacy fences are not permitted, unless otherwise authorized by the easement or as\napproved by Explorer Pipeline’s Public Awareness Program Administrator.\nB) Fence posts shall not be installed within 3 feet of the center of the pipeline and the\nfirst post either side of the pipe shall be set in hand dug holes. To perform normal\nmaintenance, access through or around fences crossing the right-of-way must be\nprovided.”\nIn Tulsa County Explorer does not attempt to correct past sins regarding privacy fences or\nregulate the placement of fence posts. The forgotten about pipeline is vulnerable to past and\nfuture damage.\nEncroachment in unplated areas\nOne of the most dramatic errors is the schoolyard of Southeast Jenks Elementary School where\nthe pipeline passes through the school yard for over 700 feet as shown here:\n\n<<>>\n\nSchools are included as a “Stakeholder\nAudience” in API RP 1162 which should\ninclude parents of SE Jenks Elementary\nstudents.\nSE Jenks Elementary was built in 1990.\nAPI Recommended Practice (RP) 1162\n49 CFR 195.440, Public Awareness\n(a) Each pipeline operator must develop and implement a written continuing public\neducation program that follows the guidance provided in the American Petroleum\nInstitute’s (API) Recommended Practice (RP) 1162 (incorporated by reference, see\npart 195.3).\nExplorer’s response to RP 1162 in the form of a mailout to the affected public includes “Signs of\na leak”, “What to do if a leak occurs”, and “How to recognize a leak”.\nRequired by RP 1162 (5.3.5) but not included in Explorer’s mail out is encroachment, privacy\nfences, landscaping, storage buildings, access to the pipeline system during emergencies, and\nthe importance of the ROW area being clear of trees, shrubs, buildings, fences, structures, or\nany other encroachments that could affect the integrity of the pipeline. Explorer’s mailer does\nnot direct the public to the ROW hazards described on their website.\nRP 1162, New Hazards (6.3) includes “Certain operational changes initiated by the operator can\nintroduce new hazards that have not been previously communicated to affected stakeholders.”\n\n<<>>\n\nThe all-encompassing term “Petroleum” used in Part 195 and in Explorer’s public\ncommunications and shown on their pipeline markers is not at all adequate to explain the\ndifferent commodity groups that have different leak recognition and response requirements.\nHelp needed.\n• Local government needs the ability to determine if railcar parking and transloading of\nhazardous materials preempts local codes.\n• Explorer Pipeline should be required to discontinue or fully justify the risk associated\nwith transporting 15 psi diluent across Tulsa in their 50-year-old pipeline.\n• Explorer Pipeline should be required to present a plan for correcting historic\nencroachment.\n• Explorer Pipeline should be required to fully comply with the requirements of API RP\n1160 and 1162.\n• 49 CFR 195 should be changed to reflect the differences between relatively low hazard\nmaterials such as diesel and jet fuel and motor gasoline and 15 psi diluent.\nSincerely,\nOriginal Signed by:\nFred Storer\n111 W 5th Street, Apt. 803\nTulsa, OK 74103\nffstorer@gmail.com\ncc: via email to: Explorer Pipeline Company, et al.\n\n<<>>\n\n\n\n<<>>\n\nMEMORANDUM\nTo: Tulsa Concerned Citizens\nFrom: Re: Peter A. Pfohl, Slover & Loftus LLP\nFederal Preemption of Local Zoning, Permitting, and Safety Laws\nGoverning Butane Transloading in Tulsa\nDate: March 1, 2023\nI.\nEXECUTIVE SUMMARY\nWe have been asked to present the framework, reach, and application of federal\npreemption of local laws under the ICC Termination Act of 1995, Pub. L. 104-88, 109\nStat. 803 (“ICCTA”) as they apply to the storage and transloading of large volumes of\nbutane, a hazardous commodity, being performed at two sites in in Tulsa, Oklahoma, at\nor near: (1) 660 East Independence Street, an area near downtown close to BMX USA\n(“Downtown Site”) and (2) 5307 East Pine Street, located in Northeast Tulsa (“East Pine\nSite”), collectively the “Sites”.\nThe owners/lessees of these Sites have engaged in the unpermitted storage and\ntransloading of many millions of pounds of butane annually, a highly flammable\nhazardous chemical, and these activities appear to have been increasing recently. In the\nevent of accidental discharge, such activities pose serious, and imminent public health\nand safety threats to the substantial nearby populations, neighborhoods, and the\nenvironment. These are activities that implicate multiple zoning, permitting, fire code,\nand other public safety ordinances, codes, and laws. Most notably, both Sites are zoned\nonly for light or medium industry, which prohibits the storage and transloading of such\nhazardous materials. Also, neither Site has received permission to operate through any\npermit, Variance, or Special Exemption use to our knowledge.\nWhile the open zoning violations at the Sites are subject to enforcement actions,\ninjunctive relief, and substantial penalties, of $1,200.00 or more per day for each\nviolation under City Zoning Laws, to date, no such enforcement actions have taken place\nto our knowledge. Instead, it appears that local enforcement officials may have assumed\nthat, because the activities involve railroads acting within the jurisdiction of the federal\nSurface Transportation Board (“STB” or “Board”) under ICCTA, all zoning, permitting,\nfire code, and other public safety laws are completely preempted by federal law.\nHowever, based on the facts known to date, and for the reasons discussed below,\nwe do not believe the butane railcar storage and transloading activities being conducted at\n\n<<>>\n\nthe Sites are within the jurisdiction of the STB and eligible for preemption protection\nunder ICCTA. In sum, based on the facts known to date, we know of no federal law that\nwould prevent local officials from enforcing applicable ordinances, codes, laws, and rules\nimmediately. We are also unaware of any applicable legal authority that would\nreasonably support a finding of preemption, and believe that any asserted defense of\npreemption by the operators of the Sites in response to such enforcement actions would\nbe unsuccessful.\nII.\nQUALIFICATIONS\nI am an attorney with twenty-five years’ experience in rail transportation law, and\nour firm has been participating in the space for over 50 years. I have represented a wide-\nvariety of stakeholders in the transportation arena, including railroad shippers and\nreceivers, states, cities, localities, public agencies, ports, terminals, and short-line\nrailroads, on a broad range of issues. In the course of these representations, I have\nworked on numerous matters involving the common carrier obligation, agency\njurisdiction, and federal preemption. In my practice, I have addressed many of the issues\nthat commonly arise with respect to ICCTA preemption, including, but not limited to\nissues relating to: (a) the STB’s jurisdiction over transportation, property, and track, (b)\ncategorical (or express) preemption; (c) as-applied preemption; (d) preemption of local\nordinances; (e) preemption of state environmental and safety statutes; (f) preemption of\nother state or federal law remedies; (g) preemption of state property rights claims; (h)\npreemption of state contract law claims; (i) preemption of state tort claims; and (j) the\nauthority of courts and the STB to decide jurisdictional and preemption matters.\nMy practice has included representation of clients on these matters in various\ndisputes before state and federal courts and arbitral panels, and in proceedings and\nhearings before the STB, the Federal Railroad Administration (“FRA”), and the Pipeline\nand Hazardous Materials Safety Administration.\nI earned a Bachelor of Arts degree from the University of Notre Dame (1989) and\nearned my Juris Doctorate degree from the Columbus School of Law at Catholic\nUniversity of America (cum laude) (1997). I am an active member of the bar for the\nDistrict of Columbia, and am a past President, and current Board Member, ex officio, of\nthe Association of Transportation Law Professionals. I have received several\nprofessional honors for my practice, including Band 1 ranking by Chambers USA,\n“Leaders in their Field,” for Transportation: Rail (for shippers) (Nationwide), and was\nrecently named “Lawyer of the Year” by Best Lawyers for Transportation Law,\nWashington D.C., 2023.\n- 2 -\n\n<<>>\n\nII.\nFACTUAL BACKGROUND\nThe involved butane railcar storage and transloading activities are being conducted\nat two locations, the Downtown Site and the East Pine Site.\nA. Downtown Site Butane Railcar Storage and Transloading Activities\nThe Downtown Site is in Tulsa’s Historic Greenwood District, a Oklahoma Main\nStreet Community and Destination District. The location consists of a an approximately\n8.4 acre privately leased site immediately adjacent to yard track owned by Watco, a non-\ncarrier transportation services and shortline holding company, and/or its subsidiary South\nKansas & Oklahoma Railroad (“SKOL”) (collectively “Watco/SKOL”). SKOL is a\nClass III, shortline railroad that operates over 425 miles of track and interchanges/\nconnects with other railroads (e.g., BNSF, UP, and KCS) at several nearby locations.\nThe Downtown Site is immediately adjacent and to the West of the 12.6 acre site\nof USA BMX headquarters and Hall of Fame opened in 2022, and to the East of\nOklahoma State University-Tulsa. It is also immediately adjacent and to the West of the\n9.5-acre site owned by the City of Tulsa which has recently approved the $44 million\nredevelopment of the 120,000-square-foot Oklahoma Ironworks building into a mixed-\nuse food, retail, office/business incubator space. See https://www.cityoftulsa.org/press-\nroom/team-alchemy-selected-to-redevelop-historic-evans-fintube-site/. The location of\nthe Downtown Site is depicted in the schematic below.\n- 3 -\n\n<<>>\n\nThe Downtown Site includes two spur tracks extending 1,865 feet, with 26 railcar\ncapacity. Watco/SKOL designed and constructed the Downtown Site in 2015 as a\nliquified petroleum gas storage and transloading site to be leased to third parties. Since\nconstruction completion, we understand that two tenants have leased, occupied, and\noperated butane railcar storage and transloading at the Site, including Base, Inc. (d/b/a\nSecond Base), and most recently, Centennial Energy, LLC a subsidiary of NGL Energy\nPartners LP (“Centennial/NGL Energy”).\n- 4 -\n\n<<>>\n\nA recent inspection report of the Downtown Site by the Environmental Protection\nAgency’s (“EPA’s”) Enforcement and Compliance Assurance Division (“EPA Inspection\nReport”) described in detail operations at the Site. A copy of the EPA Inspection Report\nis set forth at Attachment 1. The butane is owned by Keyera Energy, LLC (“Keyera),\nand is shipped by rail in railroad line-haul service to Centennial/NGL Energy’s leased\nDowntown Site in approximately 30,000-gallon (~146,000 pound) railcars, delivered by\nSKOL. The product is temporary stored in place in the railcars at the Downtown Site by\nCentennial/NGL Energy, and ultimately transloaded to approximately 9,200-gallon\ntanker trucks by RLS International Transport Services, Inc. (“RLS”), Centennial/NGL\nEnergy’s contractor. The product is then transported by truck (3-4 trucks per railcar) by\nGroendyke Transport, Inc. (“Groendyke Transport”), back through the City of Tulsa\nsome 16 miles south of the City to Keyera’s Oklahoma Liquids Terminal, in Glenpool,\nOklahoma, acquired by Keyera in 2018.\nThe Keyera Terminal is situated on the southwest corner of the Glenpool tank\nfarm, owned and operated by Explorer Pipeline Company. We understand that Keyera\nreceives and stores the butane at its Terminal, where it is then blended at the location, and\ntransported via Explorer’s pipeline and connecting pipelines to Canada to make\npumpable bitumen.\nThe EPA Inspection Report found several safety violations of EPA rules,\nincluding inadequate hazard assessment techniques by the operator to identify butane\nleaks from railcars and a failure to submit a Risk Management Plan (“RMP”). A RMP\nidentifies the potential effects of a chemical accident and an evaluation of worst-case and\nalternative accidental releases. A RMP also provides a history of accidents/releases,\naccident prevention programs, and emergency response procedures to be taken should an\naccident occur.\nWe understand that a RMP submitted by the previous tenant of the Downtown Site\nidentified the Offsite Consequence Analysis (“OCA”) “worst case” damage distance of\nan accidental butane release from a railcar of 0.4 miles, covering a significant area of\nDowntown Tulsa. Broadly, for butane, a flammable gas, this is the distance a vapor\ncloud explosion blast waves will travel before dissipating to the point that serious injuries\nfrom exposure will no longer occur. 40 C.F.R. part 68. Put differently, this is the\ndistance required for the pressure wave created by the exploding contents of a single\nrailcar, one of 26, to dissipate to the point where injury or structural damages do not\noccur. However the larger concern of many citizens is the consequence of a fire\noccurring at one of three locations where a trailer mounted apparatus is used to make\ntemporary connections via flexible hoses between a rail car and a semi-truck trailer. A\nfire which impinges on a railcar or trailer can create the conditions for a Boiling Liquid\nExpanding Vapor Explosion (“BLEVE”). A BLEVE could launch fragments of the\nvessels for hundreds of yards, causing catastrophic injuries and harm to the public.\nShould the threat of BLEVE incident arise, the Fire Department would need to evacuate\n- 5 -\n\n<<>>\n\nthe area, including closing U.S. 75 and I-244, for an extended period while the fire\nburned out and cooled down, which is what recently occurred with the rail derailment in\nEast Palestine, Ohio, which led to the evacuation of the town, and the controlled release\nand burning of hazardous commodities from railcars.\nIt is unclear the total volume of butane currently being stored/transloaded at the\nDowntown Site by Centennial/NGL Energy, but the maximum volumes appear consistent\nwith the previous operator at the location, who reported to EPA that it temporarily stored\nin place in railcars as much as 3.8 million pounds (or approximately 781,000 gallons) of\nbutane at one time in batches of 26 railcars. Watco has recently listed the Downtown Site\nas available for lease for LPG transloading by third parties. A copy of Watco’s leasing\nbrochure is set forth at Attachment 2.\nB. East Pine Site Butane Railcar Storage and Transloading Activities\nThe East Pine Site is located in Northeast Tulsa and is adjacent to the Maplewood\nand Dawson residential neighborhoods, and the Mike Patrick Park. The Site is owned by\nBase, Inc., however, a substantial portion of railroad track on and near the parcel,\nincluding the mainline used to serve the facility comprising part of BNSF’s Cherokee\nSubdivision, is owned by BNSF Railway, Inc., a Class I common carrier railroad.\nThe location and relevant aspects of the Site, including rail lines, and the butane\nrailcar storage and transloading locations, are shown in the schematic below.\n- 6 -\n\n<<>>\n\nAs reflected above, a very small portion of the railroad track (highlighted in\nyellow), consisting of 745 feet of track, was authorized by the STB in 2021 to be leased\n(along with accompanying undeveloped land) to a newly created subsidiary of Base, Inc.,\nTulsa Base Railroad, L.L.C. (“TBR”) for common carrier service in FD 36536, Tulsa\nBase Railroad, L.L.C. – Lease & Operation Exemption – Base Inc. The remainder of the\ntrack where railcars are stored and transloaded is classified as private industry track,\nowned and maintained by Base, Inc. as reflected in the drawings provided by TBR to the\nSTB in FD 36536, shown below:\nWe understand, but have not been able to confirm to date, that the butane being\nshipped to the East Pine Site for storage and transloading, like at the Downtown Site, is\nowned by Keyera. It is shipped by rail by to the Site by BNSF, also in approximately\n30,000-g","truncated":true,"body_characters":73132}