Monday, January 27, 2014

TSB and NTSB Make Crude Train Recommendations

Early last week the Canadian Transportation Safety Board (TSB) and the US National Transportation Safety Board (NTSB) made a coordinated series of recommendations based upon the preliminary investigation results from the Lac-M├ęgantic crude oil train wreck and initial investigation results from the Casselton, ND crude unit train wreck.

The NTSB recommendations to the Federal Railroad Administration (FRA) and the Pipeline and Hazardous Material Safety Administration (PHMSA) go significantly beyond the political calls for replacing the older DOT 111 railcars that have apparently contributed so greatly to the catastrophic destruction seen in these recent derailments and fires.

The twin recommendation documents published on the January 21st outline what is currently known about the two accidents and additional related rail incidents that occurred with trains transporting ethanol. In addition they provide supporting details for the six recommendations that will be discussed below.

NOTE: It is interesting that the NTSB has expanded this discussion to include the bulk shipment of ethanol in unit trains. Given that there are more car loads of ethanol being shipped than crude oil, and given that they are using the same types of cars over the same tracks, it might be interesting for someone to look into why there has been a rash of crude oil train wrecks, but not similar rash of ethanol unit train wrecks. Could it be related to the fact that crude oil is not a ‘clean fuel’ and may thus be preferentially targeted by environmental extremists?

Route Planning

Two of the six recommendations (R-14-1 and R-14-4) are virtually identical in that they recommend that the two agencies work together to:

“Expand hazardous materials route planning and selection requirements for railroads under Title 49 Code of Federal Regulations 172.820 [Link Added] to include key trains transporting flammable liquids as defined by the Association of American Railroads Circular No. OT-55-N and, where technically feasible, require rerouting to avoid transportation of such hazardous materials through populated and other sensitive areas.”

The current route planning and selection requirements are limited to bulk rail shipments of explosives, toxic inhalation hazard (TIH) chemicals, and radioactive materials {§172.820(a)}. There has been no indication that the complicated rules for route evaluation (requiring evaluation of 26 separate and un-weighted factors Appendix D to Part 172) has done anything to reduce the number of shipments of the covered chemicals through major metropolitan areas which was arguably the intent of the regulators.

The current §172.820 regulations do not require the re-routing of the covered material ‘to avoid transportation of such hazardous materials through populated and other sensitive areas’. It requires a vaguer standard of:

“Using this process, the carrier must at least annually review and select the practicable route posing the least overall safety and security risk.” {§172.820(e)}

Enforcement of these route selection decisions is more than a little vague. There is no requirement to submit the analysis documents to either the FRA or PHMSA (or TSA for security issues) for approval. They must be made available to inspectors from DOT or DHS. Finally the DOT may only require a change in route selection in concert with the TSA and only after the Surface Transportation Board determines that the alternative route is “economically practicable” {§172.820(j)}. Because of the lack of a measurable standard for the “most secure practicable route available”, it is unlikely that any such order would stand up in court.

Spill Response Plans

There are nearly twin recommendations (R-14-2 and R-14-5) to the two agencies dealing with spill response plans. The primary responsibility for these plans is given to PHMSA:

“Revise the spill response planning thresholds contained in Title 49 Code of Federal Regulations Part 130 [Link Added] to require comprehensive response plans to effectively provide for the carriers’ ability to respond to worst-case discharges resulting from accidents involving unit trains or blocks of tank cars transporting oil and petroleum products. (R-14-5)”

Section 130.31 sets for the current requirements for spill response plans. While there are a number of administrative requirements, the key action item is found at §130.31(b)(4):

“Identifies, and ensures by contract or other means the availability of, private personnel (including address and phone number), and the equipment necessary to remove, to the maximum extent practicable, a worst case discharge (including a discharge resulting from fire or explosion) and to mitigate or prevent a substantial threat of such a discharge;”

The concern of the NTSB being addressed by the recommendation to revise the planning thresholds is that the current language in §130.31(a)(2) limits the requirements for the spill response plan to just a spill from a single packaging. The accident record in the last year surely indicates that more than a single railcar (the packaging in this instance) will be involved in the spill and subsequent fire.

The NTSB is concerned that the current language allows for inadequate funding support for the spill response in the types of accidents with crude oil and ethanol unit trains that we have been seeing. The adequate spill response for a single car spill may be totally inadequate for a a multiple rail car discharge.

The FRA counterpart to this recommendation addresses the need to audit the plans to “ensure that adequate provisions are in place to respond to and remove a worst-case discharge to the maximum extent practicable and to mitigate or prevent a substantial threat of a worst-case discharge. (R-14-2)” Since there are no provisions in Part 130 requiring the submission of spill response plans or the approval of emergency response plans, there is currently no good method of determining if the plans currently in place (even given their single packaging scope) are adequate to the task at hand.

One other significant shortcoming in the current spill response plan requirements is that there is no requirement in the plan in how to deal with fires and explosions subsequent to a spill. The only real response requirement is listed in §130.31(b)(3) which describes authority to “implement removal actions”. It might be worthwhile considering the addition of fire suppression planning for unit trains carrying flammables.

Crude Hazard Classification

The last two recommendations address the issue of proper classification of crude oil hazards. Again PHMSA is given the task of establishing the requirement and standards while FRA is given the responsibility for auditing the performance of rail shippers.

The Hazardous Material Regulations (HMR) already require a shipper to properly classify and describe hazardous materials {§173.22(a)(1)} and §173.120 provides the definition of flammable liquids (Class 3) and §173.121 provides the testing criteria for the assignment of packing groups within that class.

While PHMSA is continuing its testing of samples of the Bakken Crude to determine if any additional testing requirements might apply, the NTSB discussion of the classification of the crude in the Casselton incident (pg 11 of the PHMSA recommendation letter) indicates that the initial shippers to the rail transloading facility had properly classified the material as Packing Group II while the shipping papers for the train cars incorrectly identified it as the less hazardous Packing Group III.

It is not clear how the NTSB intends for the FRA to audit the proper classification of crude oil shipments. The only real way to conduct such audits would be to pull samples from random railcars and send them to an outside lab for testing. Currently the only authority for opening hazmat packages in transit is found in §109.5, but it only allow for opening of  a packaging component “that is not immediately adjacent to the hazardous materials contained in the package”. In other words samples may not be taken.

The one exception to this is that when a DOT agent “agent has an objectively reasonable and articulable belief that the packages may pose an imminent hazard” {§190.7} the packaging may be transported to a facility for testing. This is clearly not intended to be used for audit purposes.

Safety and Security Plans

While not included in the formal numbered recommendations made by the NTSB, there is a lengthy discussion (pgs 10-11) in the documents relating to the requirements for the preparation of transportation safety and security plans for Class 3 materials classified in Packing Group I or II {§172.800(6)}. The NTSB concludes that discussion by recommending “that the FRA audit shippers and rail carriers of crude oil to ensure they are using appropriate hazardous materials shipping classifications, have developed transportation safety and security plans, and have made adequate provision for safety and security” (pg 11).

The current requirements for the security plan are more than a little vague and provide no measure to determine the adequacy of those plans. Section 172.802(a) provides a rather generic description of the components that will be included in the security plans; including:

• Personnel security (surety);
• Unauthorized access;
• Enroute security;

Since there are no real descriptions of what these components will include (for example there is no requirement for vetting personnel against a terrorist screening list or even a criminal background check) there is no way that such plans could be determined to be inadequate from a actionable regulatory point of view. Without being able to compel a shipper or railroad to achieve some measurable level of security, there is no practical need for an audit of such plans.

Now, if the NTSB had recommended that the provisions of Subpart B of the TSA Rail Transportation Security Regulations pertaining to rail security sensitive materials (again explosives, TIH chemicals, and radioactive materials similar to those requiring route planning) were made to apply to unit trains of crude oil or ethanol, then there would be some actual security planning and execution efforts to audit.

Moving Forward

The NTSB does not have any regulatory authority to compel the FRA or PHMSA to comply with their recommendations. Neither agency has a real good track record for timely adoption of NTSB recommendations. That combined with the industry’s almost legendary resistance to change and a well understood proclivity to use the courts to resist changes ensure that none of the recommendations will move forward quickly, if at all.

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