Friday, May 9, 2014

More Information on New DOT Emergency Order

A number of readers have asked me yesterday if I have a link to the DOT’s new emergency order that I described on Wednesday. Readers have become accustomed to finding extensive linking in my posts. Wednesday I did not have a link, today I do; that is thanks to a post yesterday by Secretary Fox on the DOT’s FastLane blog. A copy of the Emergency Order can be found here.

As we have come to expect from a legal document like the Emergency Order there is a certain amount of verbosity involved. Here much of the excess verbiage explains the problem of crude oil unit trains in general and specifically those carrying crude from the Williston Basin (Bakken crude oil). It goes on to explicate the authority of the Secretary to issue the order and remind the world of what other actions DOT has taken to get this problem under control. All of that is legally important stuff, but that is not the information that everyone is really looking for.

Target of Order

This order is targeted at any and all rail carriers that “that transport in a single train in commerce within the United States, 1,000,000 gallons or more of UN 1267, Petroleum crude oil, Class 3, sourced from the Bakken shale formation in the Williston Basin (Bakken crude oil)” {pg 1}. Those rail carriers failing to make the required notifications will be prohibited from operating such crude oil unit trains until such time as they make the required notifications. Failure to comply with these restrictions makes the carrier potentially “subject to civil penalties of up to $175,000 for each violation or for each day it is found to be in violation” (49 U.S.C. 5123){pg 16}.

SERC Notification

The notification requirements will be made by the covered rail carriers to every State Emergency Response Commission (SERC) representing states through which the Bakken Crude unit trains are transported. The SERCs are already tasked with coordinating the emergency response planning requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA); an EPA rule. They, in turn, will coordinate information sharing and planning functions to prepare to respond to the potentially catastrophic results of a crude oil unit train derailment.

Notification Requirements

The Emergency Order requires the following written information to be supplied to each affected SERC {pg 2} within 30-days of the effective date of this order (5-7-14):

• A reasonable estimate of the number of Bakken crude trains that are expected to travel, per week, through each county within the state;
• Identify and describe the petroleum crude oil expected to be transported in accordance with 49 CFR part 172, subpart C (HMR; Shipping Papers);
• Provide all applicable emergency response information required by 49 CFR part 172, subpart G (HMR; Emergency Response Information);
• Identify the routes over which the material will be transported; and
• Identify at least one point of contact at the railroad (including name, title, phone number and address) responsible for serving as the point of contact for SERCs and relevant emergency responders related to the railroad’s transportation of Bakken crude oil. 

The information indicated above will be updated “prior to making any material changes [emphasis added]in the estimated volumes or frequencies of trains traveling through a county” {pg 2}. The order defines a ‘material change’ to be “any increase or decrease of twenty-five percent or more in the number of implicated trains per week” {pg 13}.

Copies of the written notifications provided by the covered railroads will be maintained for potential inspection by the Federal Railroad Administration (FRA). The notice indicates that FRA “will audit railroad compliance with this Order by reviewing the notices that railroads provide to SERCs to ensure the accuracy of those notices, and also to ensure that state and local emergency responders are able to communicate with the railroad contact identified in the written notification” {pgs 13-14}.

Identify and Describe

According to 49 CFR 172.202 the description for the covered crude oil would be “Petroleum crude oil, UN 1267, 3, Packing Group I, II, or III”. The flash point and initial boiling point of the crude oil would be used to determine which ‘packing group’ would apply to the material.

Emergency Response Information

According to 49 CFR 172.602 ‘emergency response information’ includes:

• Immediate hazards to health;
• Risks of fire or explosion;
• Immediate precautions to be taken in the event of an accident or incident;
• Immediate methods for handling fires;
• Initial methods for handling spills or leaks in the absence of fire; and
• Preliminary first aid measures.

No Mention of Security Information

There is nothing in this Emergency Order that give any indication that DOT considers any of the information that rail carriers are being required to share with SERCs to be in any way sensitive information from a security point of view. The Sensitive Security Information (SSI) provisions of 49 CFR 1520 would not apply because crude oil is not considered to be a material requiring additional safety and security planning under 49 CFR 172.820 or a rail security sensitive material under 49 CFR 1580.100.

Duration of Order

This order will continue in force until specifically rescinded by the Secretary. That would be expected to take place when {pg 16}:

• The Secretary determines that an imminent hazard no longer exits; or

• A change in applicable statute or Federal regulation occurs that supersedes the requirements of the Order.

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