HR 7616 Reported in House – FY 2021 THUD Spending

Last week the House Appropriations Committee completed crafting and reporting on HR 7616, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2021. The bill does not contain any specific cybersecurity or chemical transportation-safety requirements, but both areas are addressed in the Committee Report.

Cybersecurity

On page 74 the Report addresses Committee cybersecurity concerns about Amtrak train control systems and a 2019 Amtrak OIG report on those security issues. The Committee “directs Amtrak to comply with the OIG recommendations to improve the cyber security and resiliency of Amtrak’s train control systems” and to prepare a report for Congress on their actions.

On page 83 the Committee directs the Washington Metropolitan Area Transit Authority (WMATA) to work with DOT and CISA “to ensure that the agency is complying with best practices for the procurement of Industrial Control Systems.” Additionally WMATA is directed to” to include analysis of Internet of Things (IoT) and unknown and unauthorized devices in its cybersecurity plan.”

Chemical Transportation Safety

The report covers a number of issues related to liquified natural gas (LNG) transportation and handling. On pages 93 thru 94 there is an entire section related to LNG by rail transportation. The Committee requires a number of reports from the PHMSA about safety issues related to LNG by rail. The section closes out with the statement:

“Further, the Committee notes that the INVEST in America Act [HR 2; passed by the House and not likely to be taken up by the Senate] requires the Department to rescind any special permit or approval for the transportation of LNG by rail tank cars and places a stay on any regulation authorizing the transportation of LNG by rail tank cars until the Department completes a thorough evaluation of the safety, security, and environmental risks of transporting LNG by rail.”

On page 96 the Report addresses safety issues at LNG facilities (also regulated by PHMSA). It notes that the Committee “supports PHMSA’s efforts to hire 5 inspectors and engineers to help address the potential risks associated with LNG facilities.” It also expresses concerns about delays in the rulemaking efforts to update 49 CFR 193.

In two different areas the Report addresses the safe transportation of ‘energy products’. On pages 94 thru 95 addresses safety issues related to the transportation of crude oil by rail and includes a requirement for a congressional briefing “on the findings and recommendations of the Crude Oil Characterization Research Study [link added].” DOE and DOT have already sent their required report, the Report to Congress on the Crude Oil Characterization Study, to Congress.

The second area where the Report addresses ‘energy products is in pages 96 thru 97 where ‘energy products training’ is covered. It closes the short discussion by noting:

“As PHMSA’s responsibilities for the safe movement of LNG expands, the Committee directs PHMSA to enhance its training curriculum for local emergency responders to account for LNG facilities and the transportation of LNG in rail tank cars.”

Moving Forward

HR 7616 will be included in the second spending minibus, HR 7617. The House Rules Committee will meet on Tuesday to formulate the rule for consideration of this much longer and more controversial spending bill.

PHMSA Withdraws Vapor Pressure Rule

The DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice in today’s Federal Register (85 FR 30673-30680) withdrawing their advanced notice of proposed rulemaking (ANPRM) on “Vapor Pressure of Unrefined Petroleum Products and Class 3 Materials”. That rulemaking was published in January of 2017.

According to the notice summary, based upon test results obtained by Sandia Laboratories:

“PHMSA is providing notice of its determination that the establishment of vapor pressure limits would not improve the safety of rail transportation of crude oil. Therefore, PHMSA is no longer considering vapor pressure limits for the transportation of crude oil by rail or any other mode. Furthermore, PHMSA is also providing notice that, after considering comments received to the ANPRM, it is no longer considering imposing vapor pressure standards for other unrefined petroleum-based products and Class 3 flammable liquid hazardous materials by any mode.”

Federal Preemption

The notice also includes a discussion of PHMSA’s observations about how this withdrawal would affect State and local attempts to regulate the transportation of crude oil based upon the vapor pressure of that material. The notice begins that discussion by stating:

“PHMSA, in issuing this withdrawal, has affirmatively determined that a national vapor pressure limit for unrefined petroleum-based products is not necessary or appropriate. As explained further below, PHMSA believes that Federal law likely preempts any non-Federal law that attempts to set a vapor pressure limit for these materials.”

PHMSA concludes that discussion by stating:

“A person directly affected by a non-Federal requirement may apply to PHMSA for a determination that the requirement is preempted by 49 U.S.C. 5125. See 49 U.S.C. 5125(d); 49 CFR 107.203-107.213. PHMSA is currently considering a preemption application filed by North Dakota and Montana with respect to Washington's vapor pressure limit, and will consider any application filed with respect to other non-Federal vapor pressure limits.”

In fact, PHMSA has already published their response to the North Dakota and Montana preemption application in last Friday’s Federal Register (85 FR 29511-29528). Unsurprisingly, PHMSA determined that the Washington State rules were preempted by the existing lack of vapor pressure standards in the Hazardous Materials Regulations. Both notices were signed on May 11^th, 2019, but the publication review process apparently took longer on this notice.

Commentary

I think that PHMSA erred in the way they looked at the Sandia Labs test results. As I mentioned in my earlier post on those test results, those tests just looked at the comparative effects of a fire resulting from releases of crude oil with various vapor pressures. Any chemist or fire scientist could have easily predicted the results of those tests, a similar mass of linear hydrocarbons will generate the same amount of heat energy when burned. The fireball tests were equally uninformative because of the extremely high pressure the material was subjected to before the gases were released to the atmosphere.

The testing methodology did nothing to evaluate the effect of vapor pressure on the likelihood of a vapor release during a derailment. Determining the temperature at which a crude oil sample reached a vapor pressure of 32 psig (the pressure relief setting for railcars carrying flammable materials) would provide some measure of predictive value of a vapor release (and probable fireball result) for a given material. In a complex mixture of hydrocarbons like crude oil, that might provide important hazard classification information for regulators. Whether or not that was regulatorily feasible would depend on what transportation safety mitigation factors could be applied to materials with a relatively low temperature to achieve 32 psig.

If President Trump loses the election this November, I would suspect that a Biden controlled PHMSA might revisit this rulemaking.

Sandia Labs Crude Oil Fire Report – August 2019

Last month Sandia National Laboratories published a report on a series of experiments done looking at the pool fire characteristics of a variety of crude oil samples with a wide range of vapor pressures. At least one news organization has jumped on the conclusions explicated in the Abstract to express support for the contention that the regulation of crude oil shipping should not take into account differences in oil vapor pressure.

Study Conclusions

The lengthy and very technical report from Sandia, part of the ongoing DOE investigation of the hazards associated with crude oil shipments, makes the following statement in the Abstract (pg 3):

“The results indicate that all the oils tested here have comparable thermal hazard distances and the measured properties are consistent with other alkane-based hydrocarbon liquids. The similarity of pool fire and fireball burn characteristics pertinent to thermal hazard outcomes of the three oils studied indicate that vapor pressure is not a statistically significant factor in affecting these outcomes. Thus, the results from this work do not support creating a distinction for crude oils based on vapor pressure with regards to these combustion events.”

The key phrase in the above quote is found in the last sentence; “with regards to these combustion events.” Pool fires and fireballs were created and analyzed. The study assumed that in a crude oil derailment accident the conditions would exist to cause these two conditions. In the discussion portion of the report it is noted that (pg 75): “Based on the Phase I effort, the premise is that most train accidents

provide enough kinetic energy to exceed the parameter thresholds indicating flammability;

consequently, ignition is highly probable regardless of the crude oil type.”

Vapor Pressure Measurement

This study used an automated vapor pressure measurement system (ASTM D6377) at 100˚F. This is a different method from the ones that I have discussed previously in this blog (see here for instance), but the report authors include an important discussion (Section 1.1, pg 26) about the need for proper sampling techniques and storage of tested samples. Any discussion of vapor pressure testing needs to address these issues.

Fireball Testing

The fireball testing conducted in this study was designed to look at the effects of the ignition of vapor clouds over a derailment event. It is clear from the description of the test methodology (pg 253) that investigators were concerned about vapor releases from intact railcars that were subject to the intense heating associated with direct flame impingement from a pool fire caused by a release of crude oil (or other flammable liquid) from a nearby ruptured railcar.

The test tanks were heated to 300˚C and 280 psi and a rupture disk was then command released via explosives. To ensure ignition of the resulting vapor cloud, a second explosive device was then detonated.

Commentary

The test information presented in the report is very valuable for fire response planning. It is not really surprising that the test concluded that there is little effective difference in the thermal effects of a pool fire from crude oil with wide variations in vapor pressure. Those thermal effects are more closely related to the heat released in the combustion of hydrocarbons and that is directly related to the number of carbon atoms burned, not the physical state of the molecules within which they are contained. Similar masses of carbon atoms in linear chains will produce similar amounts of heat. This is chemistry 101.

The testing of the fireball, similarly restricts the evaluation to the heat effects and the size of the fireball. Again, this is useful information for fire response planning, but it does little to address the underlying concerns about the dangers associated with variations in crude oil vapor pressure; that is the likelihood of a vapor cloud forming in a given accident.

Since DOT mandates that the pressure relief valve (PRV) on crude oil railcars release vapors at 32 psi, the testing at 280 psi is of little value. What would have been more impressive would have been gradually heating the samples in a pressure vessel until a standard 32 psi PRV opened and then igniting the resulting vapor cloud after some preset time limit. The emissivity testing reported in this study would be done on the resulting fireball, but overpressure testing at set distances from the test to evaluate differences in the blast effects from the resulting fireball should also be required.

Vapor pressure testing of crude oil is going to be of only very limited usefulness. For relatively pure substances, calculating vapor pressures at varying temperatures from single temperature testing is a rather simple application of Boyles Law. For complex mixtures like crude oil this is not the case. Each of the hundreds of components of crude oil has its own boiling point, the temperature at which it begins to significantly contribute to the vapor pressure of the mixture.

To be a valuable predictor of fireball formation in a crude oil derailment, we need a new vapor pressure testing method. Instead of measuring vapor pressure at a fixed temperature, it would be more useful to regulators to have a test that measures the temperature at which we would expect safety devices to release a vapor cloud. For rail transportation that would be 32 psi. Unfortunately, such a test would present an interesting set of potential physical hazards in the testing facility. And that would significantly increase the cost of testing.

It would be helpful in Sandia did a test evaluating a similar variety of crude oils as seen in this testing to see what sort of temperature variations were seen in the temperature necessary to reach 32 psi vapor pressure and what variations were seen in the fireball testing conducted at those temperatures. Oh, yes, please include overpressure measurements during the fireball testing. If there were relatively little practical difference in the release temperature, emissivity and/or overpressure, then we could probably conclude that vapor pressure testing was a dead issue.

DOT Reports on Flammable Railcar Fleet

Earlier this month the Department of Transportation (DOT) published their first report on the composition of the fleet of railcars used in the transportation of flammable liquids. This is one of the reports that was required to be prepared by DOD in the 2015 Fixing America’s Surface Transportation Act (FAST Act, PL 114-94; 129 STAT 1599).

The data reflects changes in the composition of the railcar fleet used to transport flammable liquids in response to the phase out schedule requirement of §7304 the FAST Act (129 STAT 1596) for older and less safe DOT 111 and CPC 1234 railcars. Table 1 below shows the changes in fleet composition since 2013.

Table 1: Changes if Flammable Liquid Railcar Fleet

With two years left (since the end of the reporting period) in the required phaseout of the DOT 111 tank cars, it looks like the railroad industry is well on its way to meeting the congressional mandate. A large portion of change over took place before the congressional mandate was put into place in December of 2015. In 2013 the flammable liquid shippers started replacing the unjacketed DOT 111 cars in their fleet with jacketed DOT 111’s and CPC 1234. It was only in 2015 that those railcars started to be removed from flammable liquid transportation service.

Unfortunately, it does not seem as if this phase out is being accomplished by the introduction of new (or refurbished) railcars. It looks like this is being greatly influenced by a general decline in the number of railcars in flammable liquid service. Table 2 shows the changes in types of flammable liquids being transported by the entire fleet.

  

Table 2: Changes in Flammable Liquids Being Shipped

This table shows that the changes in the number of railcars in flammable liquid service is almost entirely due to the general decline in the number of shipments of crude oil and ethanol. Both of these commodities suffered severe declines in 2014 and 2015 due to the drastic fall in crude oil pricing. That pricing stabilized in 2016 and has been gradually increasing since then. The decline in the number of crude oil shipments has almost certainly also stabilized and is probably increasing.

This means that future declines in the number of DOT 111 and CPC 1234 tank cars being phased out of flammable liquid service can no longer be sustained by just the reductions in the railcar fleet. More DOT 117 railcars are going to have to be placed into service to replace those older railcars. This report does not address the disparity between the number of DOT 111 and CPC 1234 railcars still needing to be replaced and the rate at which new/refurbished DOT 117 railcars are being introduced.

NOTE: Thanks to ProgressiveRailroading.com for pointing to this ‘public’ report.

HR 3435 Introduced – Crude Oil Vapor Pressure

Last month Rep. Lowey (D,NY) introduced HR 3435, a bill that would establish crude oil Reid Vapor pressure standards for the shipment of crude oil by rail. The bill is virtually identical to HR 2379 that was introduced in the 114^th Congress. No action was taken on that earlier bill.

The bill would immediately establish a maximum Reid Vapor Pressure limit of 8.5 psi for all crude oil shipped by rail. The DOT would then be required to establish “establish an appropriate national standard for the maximum volatility of crude oil to be permitted to be shipped by rail” {new 49 USC 20169(b)}. No guidance is provided on what would constitute ‘an appropriate national standard’.

Moving Forward

Lowey is not a member of the House Transportation and Infrastructure Committee to which this bill was assigned for consideration, but her co-sponsor {Rep. Garamendi (D,CA)} is. This means that there is a remote chance that the bill could be brought up in Committee. It is highly unlikely that the bill will receive consideration due to oil industry opposition. Since the initial RVP standard set in this bill is the average value reported out of the Bakken oil fields, it would severely reduce oil shipments from those fields (the bills intention).

Commentary

The fact that this bill would rely on the Trump Administration to establish an ‘appropriate national standard’ without providing legislative guidance on that standard provides a clear indication that this is a pro forma introduction with no expectation that the bill will pass into law. Further, the introduction of the bill just before the summer recess (particularly when it is nothing more than a copy of a previously ignored bill) is a clear indication that Lowey and Garamendi produced the bill to ‘show’ their supporters that they are doing something about crude oil shipments.

As I have mentioned in an earlier post the Reid Vapor pressure test required by this bill has a number of technical problems associated with it. There is a good technical article that describes those problems and more effective test for predicting the problems with the rapid rise in pressure due to fire impingement that has led to some of the overpressure situations seen in some Bakken crude oil train wreck.

I would think that most transportation safety people would agree that some sort of reasonable limit on the vapor pressure of crude oil, particularly a standard related to the rate of pressure rise in a fire impingement situation, would help to reduce some of the incidents of explosive fires that we have seen in some crude oil train incidents. Having said that, the Reid Vapor Pressure testing required by this bill is totally inadequate to that task.

PHMSA Publishes Crude Oil Volatility ANPRM

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published an advance notice of proposed rulemaking (ANPRM) in the Federal Register (82 FR 5499-5508) concerning a possible rulemaking addressing volatility of unrefined petroleum products

and Class 3 materials.

As mentioned in an earlier post, this ANPRM is based upon a rulemaking petition filed by the Attorney General for the State of New York. According to the summary of the ANPRM that petition asks PHMSA to revise the hazardous materials regulations (HMR) to “implement a Reid Vapor Pressure (RVP) limit less than 9.0 pounds per square inch (psi) for crude oil transported by rail”. In that same summary PHMSA notes that it will use public comments on this ANPRM to “help assess and respond to the petition and to evaluate any other potential regulatory actions related to sampling and testing of crude oil and other Class 3 hazardous materials. PHMSA will also evaluate the potential safety benefits and costs of utilizing vapor pressure thresholds within the hazardous materials classification process for unrefined petroleum-based products and Class 3 hazardous materials”.

Review of Existing Data

The body of the ANPRM provides a discussion of how PHMSA currently regulates how the transportation hazards of crude oil and other flammable (Class 3) liquids are categorized. It then goes on to provide a brief discussion of how PHMSA dealt with the possible issue of adding vapor pressure to the regulatory scheme in the recent highly-hazardous flammable train rulemaking. PHMSA requested input on the potential use vapor pressure, but did not end up including it in that rulemaking.

In 2014 DOE and DOT commissioned the Sandia National Laboratory to conduct a review “of available crude oil chemical and physical property data literature to characterize and define tight crude oils based on their chemical and physical properties, and identify properties that could contribute to increased potential for accidental combustion”. The initial stages of that study concluded that “the wide-ranging variability in crude oil sample type, sampling method, and analytical method, as well as the acknowledgement that this variability limits the adequacy of the available crude oil property data set as the basis for establishing effective and affordable safe transport guidelines.”

The next phase of that Sandia study is specifically designed to determine what methods of sampling and analysis are suitable for characterizing the physical and chemical properties of different crude oils.

Questions to be Answered

While the Sandia study is on-going, PHMSA is looking for input on a wide variety of issues that would have to be considered in any proposed rulemaking on crude oil and flammable liquid vapor pressure regulation in the transportation realm. In asking for that input PHMSA is asking for answers to a specific set of questions that it breaks down into four broad categories; 24 general questions, six safety questions, eight vapor pressure questions; and a single packaging question.

The general questions covers many of the issues that any new regulatory scheme has to address to justify the cost of the regulation. It includes questions about

• How a 9.0 psi Reid Vapor Pressure limit on crude oil would affect the outcome of accidents involving crude oil transportation;

• How to measure the health and environmental effects of the proposed regulations;

• What methods could be used to reduce the vapor pressure of crude oils above the proposed limit;

• Whether the vapor pressure standard should be applied to all modes of transportation;

• Whether other risk factors that should also be addressed;

• The fixed and variable costs of establishing the vapor pressure limit; and

• The transportation of the flammable gasses removed from the crude oil;

The safety questions address the potential implications that the adoption of the vapor pressure limit have on other portions of the HMR. It includes questions about:

• The definition of flammable gasses;

• The possible adoption of a new crude oil listing in the hazardous materials table (HMT) for high vapor pressure crudes; and

• The effect of flammable liquids with high concentrations of dissolved flammable gasses on the response community.

Public Responses

PHMSA is soliciting public comments on this ANPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2016-0077. Comments should be submitted by March 20^th, 2017.

There will almost certainly be a large letter writing campaign (or even possibly multiple campaigns) orchestrated by environmental activist organizations. Federal agencies do not take any special cognizance of the number of comments submitted for or against a rulemaking. They are required, however, to address specific issues raised in comments. When cut-and-paste comments are received, the agency only has to deal with a single response to each of the issues raised in the response. All of the activist organizations clearly understand this, thus it would seem that these campaigns are designed more for internal reasons (most likely fund raising) than to affect the outcome of the regulatory process.

PHSMA HHFT Oil Spill NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a notice of proposed rulemaking (NPRM) from the Pipeline and Hazardous Material Safety Administration (PHMSA) for its rulemaking: Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains.

The advanced notice of proposed rulemaking (ANPRM) was published in August of 2014. There were over 200 public responses to that ANPRM. Most of those came from individuals, not organizations or companies though there are indications that there was at least one letter writing campaign involved.

OIRA could take months to clear this controversial NPRM for publication.

Crude Oil and CFATS Top Screen

A little over a week ago I wrote a post about the webinar that the folks at DHS Infrastructure Security Compliance Division (ISCD) held about the new Top Screen tool that they plan on rolling out this fall. One of the questions that came up in that webinar was about reporting crude oil storage on the Top Screen when that crude oil contained more than one percent of any of the 300+ chemicals currently listed on the DHS chemicals of interest (COI) list. Many of the webinar participants (myself included) came away from the response thinking that such reporting was/will be required. It seems we were mistaken.

I received an email today from Josiah J. Hortega, the main ISCD presenter at that webinar. He clarified that:

“Lastly, during the webinar crude oil was discussion and I was not able to speak to that fully at the time.  I know you have posted some blogs on that discussion and wanted to share with you that Chemicals of Interest in crude oil is not covered by CFATS see 27.203 (a)(8).”

He is, of course referring to the Chemical Facility Anti-Terrorism Standards (CFATS) regulations at 6 CFR Part 27. Paragraph 27.203(a) provides a listing of items that a facility need not include in the Top Screen if they contain, among other things, “in naturally occurring hydrocarbon mixtures prior to entry of the mixture into a natural gas processing plant or a petroleum refining process unit. Naturally occurring hydrocarbon mixtures include condensate, crude oil, field gas, and produced water as defined in 40 CFR 68.3 [link added]” {§27.203(a)(8)}.

I would assume that crude oil that has undergone a degassing procedure, as is frequently done in the Bakken fields to reduce the flammability of the crude) remains within the DHS definition of crude oil, since it is less hazardous than before the degassing operation. Having said that, the §63.3 for crude oil is “any naturally occurring, unrefined petroleum liquid”. Lawyers could argue whether or not that degassing is a refining process, but I don’t think that ISCD has any dog in that hunt.

The gasses that have been removed from that high-volatility crude may be another story completely. The gas removed from the crude oil is essentially natural gas, or more appropriately field gas under §63.3; “gas extracted from a production well before the gas enters a natural gas processing plant”. Again a good lawyer could argue either side of the argument about if this gas was ‘extracted from a production well’.

Since these gas extraction units are typically in isolated areas of the country, I don’t think that ISCD would classify these operations as chemical facilities at high-risk of terrorist attack. Given that, I doubt that ISCD would want to get involved in a technical legal argument about these facilities being covered under {§27.203(a)(8)}. As always, that situation would almost certainly change if there were a high-profile terrorist attack on one of these facilities.

ISCD Top Screen Webinar

Yesterday the DHS Infrastructure Security Compliance Division (ISCD) held a meeting and webinar to preview their new Top Screen tool that will be coming out later this year. The new Top Screen tool is part of the ISCD effort to upgrade the tools used by facilities under the Chemical Facility Anti-Terrorism Standards (CFATS) program.

Top Screen Demonstration

The webinar included a very detailed review of how the revised tool will work. Attendees were taken step-by-step through the Top Screen preparation process with a variety of chemicals of interest to allow us to see how it will be used in actual practice. It would be very helpful if ISCD included links to a demonstration like this on their Top Screen web-page when the new version of the Top Screen goes live.

The new version streamlines the data entry by ensuring that the questions that the submitter sees are the ones most likely to require responses for that facility. This is tied directly to the list of DHS chemicals of interest (COI) that form the core of the Top Screen submission requirement. When a COI is selected the tool populates a navigation menu on the left side of the screen with that COI and the security issues (release, theft diversion, sabotage, economic) of concern for that particular COI.

Clicking on a security issue for a particular COI will take you directly to the basic questions that would have to be answered for that issue and COI. Additional questions may be added to the list depending on the answers provided to the basic questions. When all of the questions for a COI/security issue are answered that will be reflected in the navigation menu.

The new tool makes use of a visual rendering of the facility based on satellite photography keyed to the latitude and longitude provided during facility registration. This is used to provide ISCD with the location of the areas of the facility with the largest concentrations of each of the listed COI. The tool allows the placement of the 170-ft circle described in the current version of the Top Screen so that it encompasses the storage locations.

RMP*Comp

I noted in an earlier post that recent changes to the EPA’s RMP*Comp tool may have been part of the reason for the development of the new Top Screen tool. That does not seem to be a major driving force, but the folks at ISCD did address the issue of past and future changes in the RMP*Comp tool by removing the requirement for facilities to use the tool to calculate the distance of concern for release toxic COI. The Top Screen tool will collect all of the information needed to make the calculation and ISCD will calculate that distance internally.

This change should directly address the concerns noted in last year’s GAO report on the discrepancies noted in the distance of concern information submitted by some facilities.

New Risk Assessment Model

As I noted in last Sunday’s post about this webinar, ISCD has completed work on the congressionally mandated updating of its risk analysis process. The new Top Screen tool reflects those changes, even if DHS is not yet ready to talk publicly about the details of the new model. They did move some questions from the Security Vulnerability Assessment forward to the Top Screen to make it easier to determine if a facility is to be considered at high-risk of terrorist attack and thus be covered under the CFATS program.

Gasoline Coverage in Top Screen

Last Sunday I also noted that the International Liquid Terminal Association (ITLA) had petitioned for gasoline storage facilities to be specifically exempted from the Top Screen submission requirement. This has not been done, but there have been some changes to the Top Screen questions related to flammable release COI that might alleviate some of the concerns expressed in that petition.

There seems to be more emphasis on the NFPA flammability rating of blends containing flammable release COI. Gasoline was never specifically listed as a COI, but many of the components of gasoline (Butane, pentane, etc) are listed and are found in concentrations above the 1% minimum. We won’t be able to tell for sure if the new Top Screen adequately (from the ITLA perspective) deals with the issue until Top Screens are submitted by fuel storage facilities and the results of the ISCD’s resulting risk determination are forwarded to these facilities.

Agriculture Exemption

The other Top Screen related issue that I mentioned on Sunday was the current exemption from Top Screen filing provided to agricultural production facilities. That does not appear to have been addressed in the revised Top Screen tool previewed yesterday.

Crude Oil Coverage

An interesting question was raised during the public question phase of the webinar yesterday. It came after a couple of questions about the mixture rule as it pertained to fuels. Someone (I did not catch the name) mentioned that the same things that make gasoline fall under the Top Screen (butane and pentane were specifically mentioned) could also apply to crude oil. And this is absolutely true.

It raises an interesting question about whether or not crude oil storage facilities have been completing Top Screens for their inventories of flammable gasses contained in the crude oil mixture. Now most crude oil would have a lower NFPA fire rating so that the blends would not typically be considered high risk under most risk analysis procedures. The large rail shipping facilities in the Bakken fields are typically isolated enough from surrounding communities that they would not likely be considered high-risk of terrorist attack by ISCD.

Having said that, the high gas content of some of the Bakken crudes that makes them more hazardous in shipment could also likely raise the NFPA rating of the mixture to an extent that would make them higher risk. That combined with the location of these large rail shipping yards next to main intercontinental rail lines may raise their risk of being a terrorist target to a high enough level that ISCD would cover them under the CFATS program.

Another crude oil related area of potential concern is the increasing number of facilities that separate out the flammable gasses from crude oil as a precursor to their shipment by rail. The storage of these flammable gasses as part of their separation process should result in a significant number of facilities have to have submitted Top Screens. It would be interesting to see how many of them have.

It is unlikely that most of these storage facilities have submitted Top Screens. This is just one more area that ISCD should look to reaching out to so that at the very least the appropriate data could be collected in order to make a real risk determination. Because of the impending changes in the risk determination model, ISCD may want to hold off until the new Top Screen tool is in place before requiring these facilities to complete Top Screens.

DOT Takes Additional Actions on Crude Oil Trains – Accident Information

This is part of a detailed look at several actions that the Department of Transportation (DOT) took last Friday to reduce the hazards associated with the transport of crude oil and other flammable liquids by train. Earlier posts in this discussion include:

DOT Takes Additional Actions on Crude Oil Trains

DOT Takes Additional Actions on Crude Oil Trains – FRA EO 30

DOT Takes Additional Actions on Crude Oil Trains – Incident Report ICR

This post looks at a joint Safety Advisory published by the Pipeline and Hazardous Material Safety Administration (PHMSA) and the Federal Railroad Administration last Friday (and it is scheduled to be published in the Federal Register tomorrow).

The SA reminds railroads that the FRA and PHMSA have authority to investigate railroad accidents, particularly those involving hazardous material. As part of that investigation process they have the legal authority to demand information from the railroad and affected shippers of hazardous materials. As a matter of advance notice, the SA provides a list of the type of information that they routinely expect to request for accidents involving crude oil train cars or other flammable liquid accidents. Those include:

∙ Information on train consist;

∙ Waybill;

∙ Safety Data Sheet;

∙ Results of product testing used to categorize flammable material;

∙ Results of product testing of railcar samples;

∙ Date of Acceptance;

∙ Company extracting crude oil;

∙ Company doing initial categorization testing;

∙ Company hauling crude oil or other flammable liquid to loading facility; and

∙ All railroads handling affected railcars;

The ‘train consist’ information would include:

∙ Train number;

∙ Locomotives;

∙ Locomotives as distributed power;

∙ End-of-train device information;

∙ Number and position of tank cars in the train;

∙ Tank car reporting marks;

∙ Tank car specification and ‘relevant attributes’

Commentary

A lot of the product related information included in the above list is going to be unique to crude oil shipments because of the increased testing in the latest version of EO 28 issued last year. Manufacturers of flammable liquids do not have to test every load to confirm the classification and packing group of the material. They can use standard information on the product. The oil industry used to be able to do this, but spot checks by PHMSA indicated that there were a number of cases where those assumptions were wrong.

At this time this information is only needed on an ‘on demand’ basis in the event of a rail accident involving crude oil or other flammable liquids (mainly targeting ethanol, but that distinction is not made in this SA). It seems likely that at some point FRA will consider a formal documentation requirement for all crude oil railcars from point of extraction to delivery to the refiner.

S 650 Introduced – PTC Extension

As I noted in an earlier blog posting Sen. Blunt (R,MO) introduced S 650, the Railroad Safety and Positive Train Control Extension Act. The Senate Commerce, Science and Transportation Committee held a markup hearing on the bill this week and recommended the bill favorably after amending it. The bill would extend various deadlines for the implementation of positive train control (PTC) technology on railroads.

Background

Congress required in 49 USC 20157 that all Class 1 railroads install a PTC system by December 31, 2015 on all rail lines over which toxic inhalation hazard (TIH) chemicals are transported. In implementing that requirement the Secretary of Transportation {49 CFR 236.1005} extended that requirement to all railroads that operated passenger rail lines on the same tracks over which TIH chemicals were transported.

There have been a number of challenges in meeting that deadline; both technical and regulatory. One of the problems that the railroads had was getting regulatory approval from the FCC for installing the track-side communications antennas. The FCC had originally required that each antenna installation undergo a separate permitting process, including a required historical commission review. That process was ultimately streamlined, but only after significant delays.

Wholesale Deadline Extension

Section 2 of the bill makes two changes to 49 USC 20157. The first extends the current deadline until December 31^st, 2020 {§2(b)(1) to §20157(a)(1)}. The second would change the date basis for determining which sections of rail line would be required to have PTC installations; requiring PTC installation on lines over which TIH chemicals are transported on or after December 31^st, 2015 {§2(b)(2) to §20157(a)(1)(B)}.

Retail Deadline Extension

Section 3 of the bill would also allow the Secretary of Transportation to authorize one year extensions to the implementation deadline on a case by case basis through 2022 {§3(a)(3) adding §20157(i)}. It goes on to outline the process by which the railroad would request the extension and the guidelines the Secretary would use in approving the extension. It provides a 10 day approval decision deadline after the Secretary receives the application.

Committee Amendment

The Committee amended the bill by adding a new section 5. This section amends §20157 by adding §20157(a)(3). It would require that each covered railroad would provide detailed annual reports to the Secretary about the progress they were making on the implementation of their PTC systems. The reporting requirement would continue until the Secretary certified the PTC installation under §20157(h).

In an interesting change of Congressional reporting requirements, the amendment did not require a summary report to Congress on the PTC implementation status. Instead it required the Secretary to make each report “available on the website of the Federal Railroad Administration” {§20157(a)(3)(D)}.

Moving Forward

Chairman Thune (R,SD) is obviously making the adoption of S 650 a priority for his Committee. It will be interesting to see how well that translates into moving the bill to the floor of the Senate.

The bill did have bipartisan support in committee. There will be some environmental and safety advocates who can be expected to object to the extension of this deadline. Given the fact that the current deadline cannot be met at this point, I would expect that those objections would take the form of modifying the new deadline date in the amendment process rather than stopping the bill from being considered.

I also expect that there will be an attempt made to add rail lines over which crude oil trains run to the PTC installation requirement. This has included in some other proposed legislation about crude oil trains, but getting that particular amendment added to this bill would probably be easier than getting the other bills through the legislative process. Such an amendment would also make the overall bill more palatable to safety and environmental advocates.

HR 4738 Introduced – DOT-111 Tank Cars

As I mentioned last month Rep. Payne (D,NJ) introduced HR 4738, the Tank CarSafety Act of 2014. This is a relatively simplistic reaction to the length of time that it is taking DOT and the Pipeline and Hazardous Material Safety Administration (PHMSA) to address the safety design problems with the current (and very large) fleet of DOT-111 tank cars that are used to transport flammable liquids including crude oil.

Section 2 of the very short bill provides two general requirements for the Secretary of Transportation. First it requires the Secretary to complete a rulemaking process within 1 year, a practical impossibility given the controversial and expensive nature of the requirements mandated for that rulemaking. The second requires the Secretary to submit the obligatory report to Congress about a phase out (“on an aggressive basis”) of “older-model DOT–111 tank cars used to move flammable liquids that are not retrofitted to meet new Federal requirements established under this section” {§2(b)}

The “new Federal requirements” mentioned are those that this bill would be require the Secretary to impose under the regulations described above. Those requirements include {§2(a)(1)}:

• Outer steel jacket around the tank car;

• Thermal protection;

• Full-height head shields; and

• High-flow capacity pressure relief valves

Now these are all certainly features that would make the DOT-111 tank cars safer if properly implemented. Unfortunately, they are also more than a little vague and modifications could be made fitting these descriptions that would do very little to increase the safety of the load, or could be so onerous as to make the railcar unusable. The devil is in the detail and that is what takes so much time in a serious rulemaking like this.

Could PHMSA move faster on this rulemaking? Certainly; but PHMSA has so many rulemakings in progress (a term used very loosely here) that there are manpower constraints that impede fast action on anything, not to mention the resistance from railroads and DOT-111 car owner because of the costs involved in upgrading this very large fleet.

One final note; Congress has not been real successful in getting Federal agencies to comply with deadlines imposed by statute. The only enforcement tool that legislators have is the power of the purse string, but cutting funding can only increase the time to complete something, so it is a very empty threat.

I don’t expect that we will hear much about this legislation.

FRA-PHMSA Rail Safety Advisory Published in Federal Register

The joint safety advisory (SA) from the Federal Railroad Administration (FRA) and the Pipeline and Hazardous Material Safety Administration (PHMSA) that I described last week was published today in the Federal Register (78 FR 48224-48229). It addresses some of the safety issues that have been identified in the on-going investigation of the recent fatal derailment in Lac-Megantic, Quebec, Canada.

NOTE: The safety advisory uses an interesting spelling (?) of the city name that I haven’t seen before; “Lac-M[eacute]gantic”. I am not a French (or French-Canadian) speaker so I’m not sure what that is all about. I will continue to use the common American spelling that has made its way into the news media with appropriate apologies to any readers from Quebec.

Planned Meeting of the RSAC

The SA notes that an emergency meeting of the Railroad Safety Advisory Committee will be called to discuss potential regulatory actions that the FRA might consider in light of this accident. A meeting notice will be published in the Federal Register.

The FRA intends to have the RSAC address the following issues:

• The formulation of a task statement regarding appropriate crew size for an RSAC working group to consider; and

• The appropriate types and quantities of hazardous materials that should preclude trains transporting such materials from being left unattended on main track and sidings.

Categorization of Hazardous Materials

One of the potential issues raised in this accident is the flammability of crude oil. Different sources and blends of crude oil have different flash points. This is reflected in the three different Packing Groups that may be used for the classification of crude oil as a Class 3 hazardous material. Those Packing Groups in-turn have an impact on what types of rail cars may be used to transport crude oil. This has potential safety implications if the crude oil has a lower flash point than reflected in the shipping paperwork and an improper rail car selection is made.

As a result, DOT is recommending that “offerors evaluate their processes for testing, classifying and packaging the crude oil that they offer into transportation via railroad tank car as required by Part 173 of the HMR.”

Review Security Plans

Current DOT regulations require that offerors of hazardous materials prepare (and keep on file) a security plan for the shipment of bulk quantities of hazardous materials. It is not clear that those plans take into account the potential for the unattended parking of trains carrying those rail cars on mainlines or mainline sidings outside of rail yards. DOT is recommending that “offerors and carriers of hazardous materials review their plans adopted in accordance with subpart I of part 172 [link added] of the HMR that govern the safety and security of the transportation of railroad tank cars containing hazardous materials. In particular DOT is recommending that the review address “whether their existing plans adequately address personnel security, unauthorized access, and en-route security”

Moving Forward

Given the severity of the accident and the potential eco-political implications of the cargo involved, I am sure that this is not the last of the regulatory (or potential legislative) actions that will result from this tragic event.