A North Carolina Administrative Law Judge found that railcars on a “siding” are a “stationary source,” as such, if they contain an EHS over the RMP threshold, they fall under EPA’s Risk Management Plan. This is in line with EPA’s recently proposed changes wanting to apply a 48-hour time frame to the term “storage, not incident to transportation” based on DOT and PHMSA, Carriage by Rail regulations at 49 CFR 174.14(a), which indicate rail carriers must forward each shipment of hazardous materials promptly within 48 hours after acceptance or receipt.
A carrier must forward each shipment of hazardous materials promptly and within 48 hours (Saturdays, Sundays, and holidays excluded), after acceptance at the originating point or receipt at any yard, transfer station, or interchange point, except where biweekly or weekly service only is performed, a shipment of hazardous materials must be forwarded on the first available train.
According to EPA, a stationary railroad car on a siding containing RMP-listed EHSs will be considered a “stationary source” after 48-hrs. The “Storage, not incident to transportation” exemption would no longer apply, so the RR would need to submit an RMP for the railcars to the EPA.
Court Case
In 2018 the North Carolina Office of Administrative Hearings ruled (specifically) that railcars filled with Butane are were staged on a siding were subject to the EPA’s Risk Management Program and similar state regulations. The case involved the Aberdeen Carolina & Western Railway (ACW), a shortline railroad in North Carolina. The railroad had been staging railcars filled with butane on a siding from 168 days in 2012 to 360 days in 2015. The owner of the butane leased the siding, and North Carolina environmental officials said this amounted to ACW running a “butane warehouse.” State officials took action against the railroad and were backed by the EPA.
“ACW’s storage of butane-filled railcars for extended periods of time while disconnected from locomotive power qualifies these railcars as a ‘stationary source’ under 40 CFR Part 68,” testified James Belke, EPA’s National Policy Coordinator for the Risk Management Program.
“[And] whether or not the entity responsible for the storage of the containers is a railroad common carrier does not determine whether the railcars are considered a stationary source.”
The court agreed.
“The Court finds this to be a logical interpretation,” wrote Administrative Law Judge J. Randall May. “It would be odd indeed if EPA’s interpretation permitted facilities to circumvent RMP requirements by contracting with railroads to store their railcars on nearby tracks for months at a time.”
While the EPA hasn’t defined “extended periods,” the unofficial rule of thumb is more than 4-5 days – which the agency considers more than enough time for railroad operators to stage cars in a railyard, hook them up to a new locomotive and send them off to their next destination.