Friday, May 15, 2015

PHMSA Final Rule on HHFT – Shipper Requirements

This is part of a continuing look at the recently published final rule on highly-hazardous flammable trains (HHFT; HM-251). Earlier posts in the series include

In this post I will be looking at the new requirements that the offeror of crude oil has for the characterization of that material. Even though there are already requirements in the  hazardous material regulations to properly classify hazardous materials for shipment, PHMSA is adding a new section that specifically addresses additional measures that a shipper of crude oil must take.

Current Requirements

There is a lengthy discussion in the preamble concerning the current requirements for classifying hazardous materials. In general 49 CFR 173.22 requires the offeror to properly “class and describe a hazardous material in accordance with parts 172 and 173 of the HMR.” There is no specific mention of how often the testing has to be done to achieve that objective, just that the testing needs to have been done.

NPRM Proposal

In the NPRM PHMSA proposed adding a new §173.41 that would outline new testing requirements for mined gasses and liquids. The justification was that, while most hazardous materials shipped by rail were manufactured product with some level of consistency of characteristics, crude oil was taken from the earth and the specific characteristics varied not only by the location of extraction, but could vary by the time of year or extraction technique employed.

The NPRM proposal would have required the following areas to be addressed by the offeror:

∙ Frequency of sampling and testing;
∙ Sampling at various points along the supply chain
∙ Sampling methods;
∙ Testing methods;
∙ Statistical justification for sample frequencies;
∙ Duplicate samples for quality assurance purposes; and
∙ Criteria for modifying the sampling and testing program.

There is a lengthy discussion in the preamble about the large number (65,000+) public comments made about these crude oil characterization requirements and the PHMSA responses to those comments.

API RP 3000

One of the specific areas in that discussion that has an important bearing on the testing of crude oil is the new document from the American Petroleum Institute; API Recommended Practice 3000, Classifying and Loading of Crude Oil into Rail Tank Cars. This document obtained its final approval after the end of the comment period for the NPRM, so PHMSA was not able to include an intent to incorporate this standard by reference.

PHMSA did note in their preamble discussion that:

“The one area where the concerned public, environmental groups, and industry stakeholders agreed was that API RP 3000 should be adopted or permitted as a method of compliance with the proposed requirements.”

PHMSA does explain that:

“Furthermore, the boiling point test specified in the API RP 3000 does not align with the requirements currently authorized in the HMR. Shippers must continue to use the testing methods for classification of flammable liquids outlined in § 173.120 and flammable gases in § 173.115. However, API RP 3000 is otherwise consistent with the sampling program requirements in paragraph 173.41(a)(1)-(6) and may be used to satisfy these adopted sampling provisions.”

Finally, PHMSA notes in the final paragraph of the discussion of characterization that: “It should be noted that PHMSA may consider the adoption of the non-codified testing provisions of API RP 3000 in a future rulemaking.”

Changes in §173.41

In general the NPRM version of §173.41 pretty much made it into the final rule. There were some changes. First, of course, is that the term ‘mined gasses and liquids’ was changed to a slightly more restrictive ‘unrefined petroleum-based products’. The term ‘classification’ has also been removed with PHMSA clarifying the related requirement for the sampling and testing program to include a requirement to “identify properties relevant to the selection of packaging through testing or other appropriate means”.

PHMSA is also clarifying §173.41(a)(1) to specify that the program must account for “any appreciable variability of the material” with a list of recommended factors. They are also amending § 173.41(a)(3) to replace “as packaged” with “as offered” to clarify that the sampling may occur before the crude oil has been loaded into a transport vehicle.

Summary of §173.41

The following summary is taken directly from the final rule. Links have been added to the actual language of the appropriate portion of the added language:

“In this final rule, we are adding a new section 173.41 prescribing a sampling and testing program for unrefined petroleum-based products. This section specifies what must be included in a sampling and testing program in paragraph (a). Paragraph (b) of this section requires shippers to certify that unrefined petroleum-based products are offered in accordance with this subchapter, to include the requirements prescribed in paragraph (a). Paragraph (c) provides the requirements for documentation, retention, review and dissemination of the sampling and testing program. Finally, paragraph (d) of this section states that each person required to develop a sampling and testing program make the documentation available upon request to an authorized official of the Department of Transportation.”

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