Wednesday, July 1, 2015

S 1626 Introduced – Rail Safety

NOTE: I did not report this bill when it was introduced on June 18th because the introduction title clearly stated that it was a bill to “reauthorize Federal support for passenger rail programs”. I should have gotten suspicious about the “and for other purposes” tagged on at the end of the title. Then, listening to the Senate Commerce, Science and Transportation business meeting on June 25th, it became clear that the bill also included crude oil train provisions.

Two weeks ago Sen. Wicker (R,MS) introduced S 1626, the Railroad Reform, Enhancement, and Efficiency Act. The vast majority of the bill deals with passenger rail issues which I don’t intend to cover in this blog. There are, however, three sections in Title IV, Rail Safety, that do directly apply to freight railroads. Those sections deal with:

Confidential close call reporting system;
Technology implementation plans; and
Emergency response.

Confidential Close Call Reporting System

Section 402 would require the Secretary of Transportation to establish regulations to “encourage and facilitate the voluntary participation of railroad carriers, railroad carrier contractors, and employees of railroad carriers or railroad carrier contractors… in a confidential close call reporting system” {§402(a)}. Generally speaking this would be patterned after the aviation community’s close call reporting system. There are a lot of details involved that I don’t intend to go into.

Technology Implementation Plans

Section 407 would amend 49 USC 20156(e)(4) by adding a new subparagraph (c).  This would require each carrier required to submit a positive train control (PTC) plan to “analyze and, as appropriate, prioritize technologies and practices to mitigate the risk of overspeed (sic) derailments”. While this would appear to be a specific reaction to the latest Amtrak accident, it would directly affect all of the Class 1 railroads who are also implementing PTC; actually implementing PTC over more track than the passenger rail operations.

Emergency Response

Section 409 would require the Secretary to conduct a study to “determine whether limitations or weaknesses exist in the emergency response information carried by train crews transporting hazardous materials” {§409(a)}. Specifically the study will look at any differences between the current PHMS Emergency Response Guide (ERG) Book and the emergency response information carried by train crews. The inevitable report to congress on this study is supposed to include recommendations for legislative actions.

Committee Mark-Up

As I mentioned earlier this bill was marked up by the Senate CST Committee last week with a number of amendments offered and approved by voice votes with no discussion. Two of those amendments added requirements specifically affecting freight railroads; an amendment by Chairman Thune (R,SD) and an amendment modifying that amendment offered by Sen. Manchin (D,WV).

The Thune amendment (and the subsequent Manchin amendment) added a new Subtitle C, Hazardous Material by Rail, to Title IV. Some of the sections in this subtitle only apply to passenger railroads (I know, it doesn’t make sense) so I will ignore those, but those actually dealing with hazmat shipments by rail include:

Real-time emergency response information;
Thermal blankets;
Comprehensive oil spill response plans;
Hazardous materials by rail liability study;
Study and testing of electronically controlled pneumatic (ECP) brakes; and
Modification reporting.

Real-Time Emergency Response Information

Section 431 would require the Secretary to establish regulations for Class 1 railroads to “generate accurate, real-time and electronic train consists” {§431(a)(1)(A)}. Those railroads would also have to enter into a memorandum of understanding with ‘each applicable fusion center’ to provide secure and confidential access to those train consists. Those fusion centers would be required to provide those train consists to “first responders, emergency response officials and law enforcement personnel” {§431(a)(2)} requesting that information in the event of “an incident, accident, or public health or safety emergency” involving those trains.

The regulations would also be required to establish “security and confidentiality protections to prevent the release of electronic train consist information to unauthorized persons” {§431(a)(4)}.

Voluntary sharing of the same information by railroads with State emergency response commissions or emergency personnel would not be prohibited in the required regulation.

Thermal Blankets

Section 432 would require the Secretary to establish a regulation requiring all DOT 117 and DOT 117R railcars to be equipped with a thermal blanket between the tank shell and the tank jacket. Current tank cars with existing thermal blankets would not have to be modified to meet the thermal blanket standards set forth in this section.

Comprehensive Oil Spill Response Plans

Section 433 would require the Secretary to publish an NPRM requiring railroads “transporting Class 3 flammable liquids to have a comprehensive oil spill response plan” {§433(a)}. This would apparently be separate from the oil spill response plans required under 33 USC 1321(j)(5) as there is no mention of the Oil Pollution Act of 1990 in this section. This section certainly expands the requirements of the OPA since there is no mention of a minimum container size and it is applicable to any Class 3 flammable liquid. And once again, there is no mention of fire fighting in this bill, just spill containment and cleanup.

Presumably the bill requires the quick publication of an NPRM because PHMSA published an advance notice of proposed rulemaking (ANPRM) last year. There is a difference between that ANPRM and this section, the ANPRM applied to HHFT trains only.

Hazardous Materials by Rail Liability Study

Section 434 would require the Secretary to initiate a study looking at “the levels and structure of insurance for a railroad carrier transporting hazardous materials” {§434(a)}. This should be an interesting study because railroads have long maintained that they could not get adequate coverage for transporting the most hazardous substances like toxic inhalation hazard (TIH) chemicals. There is, of course, the mandatory report to congress.

Study and Testing of Electronically Controlled Pneumatic Brakes

Section 435 would require the Government Accounting Office to do a comprehensive review of the data available to the DOT on ECP brakes. Additionally the bill would require the Secretary to enter into an agreement with  the National Cooperative Rail Research Program (NCRRP) to do “complete testing of ECP brake systems during emergency braking application, including more than 1 scenario involving uncoupling of a train with 70 or more DOT 117-specification or DOT 117R-specification tank cars” {§435(b)(1)(A)}.

Funding for the NCRRP testing would come from the rail cooperative research program (49 USC 24910). Since they are supposed to crash at least four trains Thune expects that this may exceed the amount authorized for that program, so any additional funds would have to come out of the “amounts appropriated to the Office of the Secretary” {§435(b)(4)(B)}.

Since ECP brakes are already required under the new HHFT regulations, this section would require the Secretary to modify those requirement (within 60 days of the bill being adopted) to provide a two phased approach to ECP brake system requirements. The first phase would require that all DOT 117 and DOT 117R railcars be constructed to “have an ECP-ready configuration” if they are to be used “in high-hazard flammable unit train service” {§435(c)(1)}.

The second phase would occur after the ECP brake study is completed and the Secretary considers the second phase necessary. The second phase would essentially be the current final ECP brake requirements from the new HHFT regulations.

Thune does not define HHFUT the same as the Secretary defined HHFT in the new regulation. HHFUT would be any train “transporting 70 or more loaded tank cars containing Class 3 flammable liquid” {§435(f)(6)}.

Modification Reporting

The Manchin amendment would add §438 to the Thune amendment. It would require the Secretary to establish a reporting requirement “to monitor industry-wide progress toward modifying tank cars used in high-hazard flammable train service by the applicable deadlines or authorized end dates set in regulation” {§438(a)}. Interestingly, Manchin does use the current HHFT definition in this section.

Moving Forward

Senator Thune clearly intends to get this bill on the floor of the Senate as quickly as possible and there is broad bipartisan support to do so in the Committee. In fact a couple of more controversial amendments were withdrawn to make it easier to get the bill to the floor of the Senate. They will, of course, be offered as amendments on the floor. This will be a bill that a number of people would attempt to amend so it is difficult to predict whether or not it could ultimately be passed. More high profile accidents in either freight or passenger rail service will make it easier to pass.

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