Wednesday, August 3, 2016

PHMSA Publishes HHFT Oil Spill Response Rule

Last week the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register  (81 FR 50067-50129) concerning oil spill response plans and information sharing for high-hazard flammable trains. The advance notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014.

This rulemaking addresses three general areas:

Oil Spill Response Plans

The current hazardous materials regulations (49 CFR 130) currently requires two types of oil spill response plans (OSRP). The basic OSRP {§130.31(a)} covers any oil shipment in containers of 3,500 gallons or greater. The comprehensive OSRP {§130.31(b)} covers any oil shipment in containers of 42,000 gallons or greater. Since railcars used for transporting crude oil are generally 30,000 gallons, railroads are currently only required to prepare basic OSRPs.

This NPRM proposes to generally re-write Part 130; moving (and expanding) the comprehensive OSRP requirements to a new Subpart C. The changes to the comprehensive OSRP requirements would include:

• Expanding the applicability for comprehensive oil spill response plans to include “Any railroad which transports a single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist” {new §130.101(b)};
• Establishing a general requirement for the overall development of the comprehensive response plan and requires the plan uses the National Incident Management System (NIMS) and Incident Command System (ICS) {new §130.102(a)};
• Establishing a general requirement for the plan format including the development a core plan and the establishment of geographic response zones and accompanying response zone appendixes {new §130.102(b)};
• Establishing requirements for the notification procedures and contact information that a railroad must include in a comprehensive oil spill response plan {new §130.105};
• Establishing requirements for equipment testing and drill procedures consistent with PREP requirements for comprehensive oil spill response plans {new §130.108}; and
• Establishing requirements and procedures to submit comprehensive oil spill response plans for approval to FRA {new §130.111};

Nothing in this rule changes the basic OSRP requirement that the plan is targeted at oil spill containment and recovery. In fact, a new definition is added in §130.5 for ‘Response Activities’ that specifically limits that definition to the “the containment and removal of oil from navigable waters and adjoining shorelines”.

Information Sharing

While information sharing was not included in the ANPRM for this rulemaking, Congress did recently specifically direct DOT to “require each Class I railroad to provide advanced
notification and information on high-hazard flammable trains to each State emergency response commission, consistent with the notification content requirements in Emergency Order Docket No. DOT–OST–2014–0067 [.PDF Download link added]” {§7302(a)(3) of the FAST Act (PL HR 114-94)}.

This NPRM establishes information sharing requirements that expands the notification requirements of the Emergency Order to include all Highly Hazardous Flammable Trains (HHFT) as defined in §171.8. The NPRM would require monthly reports to State and Tribal Emergency Response Commissions (SERC and TERC) that would include:

• A reasonable estimate of the number of HHFTs that the railroad expects to operate each week, through each county within the state or through each tribal jurisdiction;
• The routes over which the HHFTs will operate;
• A description of the hazardous material being transported and all applicable emergency response information required by subparts C [Shipping Papers] and G [Emergency Response Information] of part 172; at least one point of contact at the railroad (including name, title, phone number and address) with knowledge of the railroad's transportation of affected trains (referred to as the “HHFT point of contact”); and
• If a route is subject to the comprehensive spill plan requirements, the notification must include a description of the response zones (including counties and states) and contact information for the qualified individual and alternate, as specified under § 130.104(a).

SERCs and TERCs would be required to share the supplied information with “appropriate local authorities, upon request” {new §174.312(a)}. Further dissemination of the information may be restricted upon request by the submitting railroad if the railroad determines that the information may be “security sensitive or proprietary and exempt from public disclosure” {new §174.312(a)(2)(iii)}. The language does not make the information Sensitive Security Information under §1520.5 so the SERC and TERC would be able to make their own decisions as to what State or local regulations applied to the protection of the information.

Initial Boiling Point Test

One of the concerns about shipping crude oil from the Bakken region is that the current standard for classifying the crude oil for shipment may not appropriately address the volatility of the crude oil. Suggestions have been made to include a vapor pressure measurement for use in the classification of crude oil and I have discussed the problems with that sort of measurement.

The current testing process outlined in §173.120 and §173.121 almost certainly allow significant amounts of the light-ends (low molecular weight hydrocarbons). Depending on the concentration of these light-ends, these current test methods could significantly under-state the flammability of the material.

Recognizing this problem, PHMSA and the American Petroleum Institute (API) came up with a best practice (ANSI/API RP 3000) for measuring the flammability of crude oil that includes using ASTM D7900 for determining initial boiling point. This test method, however, is not one of the approved methods for classifying flammable liquids in §173.121. This NPRM would add ASTM D7900 as an acceptable alternative for determining initial boiling point to be used in determining packing groups for Class 3 (flammable liquids) hazardous material.

Public Comments

PHMSA is soliciting public comments on this rule making. Written comments may be submitted via the Federal eRulemaking Portal (; Docket # PHMSA-2014-0105). Comments should be submitted by 9-27-16.


My major concern with the OSRP section of the NPRM is that it fails to address what is the most publicly acknowledged problem with crude oil transportation by unit trains; the potential for catastrophic fires and explosions resulting from a rail accident and the inability of most local first response agencies to properly deal with this type of catastrophic emergency. Unfortunately, the current OSRP rules are based upon the Clean Water Act provisions that are intended to protect waterways (and drinking water sources) from contamination with crude oil. Until Congress specifically addresses the flammability problems associated with a variety of energy chemicals shipped by unit trains, neither PHMSA, FRA, nor the Coast Guard will be able to address these very real probable consequences of oil spills.

PHMSA took a pass on addressing the issue of confidentiality of HHFT train schedule information by allowing the railroads to claim that the information was either sensitive from a security perspective or confidential business information and then allowing each SERC or TERC to evaluate those claims based upon State and local laws. Again, PHMSA has not really been authorized to make a determination that the information falls within the Sensitive Security Information rules; only TSA is authorized to make that determination. Again this is going to take Congressional action to resolve this problem.

The issue of crude oil testing is a more complex problem. The addition of ASTM D7900 to the list of allowable test methods provides crude oil shippers with a more accurate method of classifying crude oil based upon the initial boiling point. PHMSA has long maintained that shippers are responsible for determining which of the allowed test methods is the most appropriate for classifying the material which they ship. The use of this test should result in upgrading some shipments from Packing Groups II and III and that will result in some increase in safety of those shipments.

What is missing, however, is a more complete discussion of the role of volatility in the fires and explosions seen in a relatively small number of crude oil derailments. Measurement of volatility, alone will not increase safety unless some additional safety measures are required for flammable liquids with higher vapor pressures. For crude oil, that could include a requirement to remove light-ends from the material to reduce vapor pressure before it is offered for shipment.

To be an effective safety tool, any vapor pressure testing is going to have to specifically address protection of samples from vapor loss (sealed sampling devices and sample containers) as well as measuring vapor pressure at multiple temperatures if there is any hope of using the test as an effective tool for predicting the safety consequences of the fluid vapor pressure.

The current NPRM provides a good first step at addressing the transportation safety classification of crude oil. Hopefully PHMSA will continue to look at possible additional changes to test methodology to more completely identify the safety issues associated with crude oil transportation.

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