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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