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-Mégantic 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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