S 3023 Introduced – FY 2019 THUD Spending

Last week Sen. Collins (R,ME) introduced S 3023, the Transportation, Housing and Urban Development, and Related Agencies  (THUD) Appropriations Act, 2019. The bill includes an unusual congressional ‘fine’ on the Department of Transportation for failure to implement a regulation pertaining to oil spill response planning.

Comprehensive Oil Spill Response Plans

In August 2016 the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) that would have (among other things) expanded the requirements for the preparation of a Comprehensive Oil Spill Response Plan to trains consisting of “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 49 CFR §130.101(b)}. The Senate Appropriations Committee has been pushing for PHMSA to complete that rulemaking process from practically since the advance notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014.

In S 3023 the Committee became a bit more forceful in its legislative push. In the portion of the bill providing for funding of PHMSA it notes (pgs 69-70):

“For necessary operational expenses of the Pipeline and Hazardous Materials Safety Administration, $23,710,000: Provided, That the Secretary of Transportation shall issue a final rule to expand the applicability of comprehensive oil spill response plans within 45 days of enactment of this Act: Provided further, That the amounts appropriated under this heading shall be reduced by $100,000 per day for each day that such rule has not been issued following the expiration of the period set forth in the previous proviso.”

The Committee Report on the bill further explicates the purpose of the fine on pages 82-3; concluding:

“The Committee notes with severe disappointment that, to date, despite additional resources being provided by the Committee, PHMSA has repeatedly failed to comply with explicit directions from this Committee. The Committee directs PHMSA to issue a final rule to require comprehensive oil spill response plans for rail carriers within 45 days of enactment of this act, and includes a fine for any delays.”

The Unified Agenda entry for this rulemaking projects the issuance of a final rule by September of this year, ostensibly within the 45 day limit set forth in this bill. Of course, the Fall 2017 version of the Agenda said that the final rule would be published by July and the Spring 2017 version said December 2017.

Other Comments

There are no other specific entries in the bill that would draw the specific interest of readers of this blog, but there are a few other comments in the Report that may be of interest.

• $3 million of the funds for University Transportation Centers is earmarked for “rural autonomous vehicle and connected vehicle research to be conducted by existing UTCs” (pg 15);

• The Committee expressed concern with the rate of the phase out of ‘unsafe’ tank cars transporting flammable liquids and directed that PHMSA “work with industry stakeholders to ensure progress and to promote acceleration of the tank car phaseout process” (pg 83; and

• The Committee expressed concern about the slow pace of another rail safety regulation from PHMSA, the requirement for Class 1 railroads to make available “electronic format train consist information” (pg 83).

Moving Forward

As with all spending bills, the Senate will use the language of this bill as substitute language for the House passed bill (not yet introduced). Interestingly, the language in this bill was adopted by a unanimous vote of the Appropriations Committee.