OMB Approves PHMSA HHFT Oil Spill Response Plan NPRM

On Friday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the DOT’s Pipeline and Hazardous Material Safety Administration’s (PHMSA) notice of proposed rulemaking on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”. The advanced notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014. The NPRM was sent to OIRA  back in February.

It is interesting to note that there was a significant change in the title of this rulemaking after the ANPRM was published. Originally titled: “Oil Spill Response Plans for High-Hazard Flammable Trains”, the new title (which added the words ‘and Information Sharing’) was first used in the Fall 2015 Unified Agenda. It was not until the Spring 2016 agenda was published that we were able to see how that might affect the scope of the rulemaking. The abstract for the rulemaking now states:

“This rulemaking, developed in consultation with the Federal Railroad Administration, would revise PHMSA's regulations to expand the applicability of comprehensive oil spill response plans (OSRPs) based on thresholds of liquid petroleum oil that apply to an entire train. We are also proposing to revise the format and clarify requirements of a comprehensive OSRP and to require railroads to share information [emphasis added] about high-hazard flammable train operations with state and tribal emergency response organizations (i.e., State Emergency Response Commissions and Tribal Emergency Response Commissions) to improve community preparedness. Lastly, PHMSA is proposing an update to boiling point testing [emphasis added] procedures to provide regulatory flexibility and promotes enhanced safety in transport through accurate packing group assignment.”

The information sharing provisions should be fairly straight forward, but it will be interesting to see how PHMSA deals with the terrorism fears on subsequent information sharing by State agencies. What will be very interesting to see is how PHMSA plans to deal with the crude oil volatility issue being addressed by the changes to boiling point testing (see my post about their earlier Safety Advisory on the topic). The wording in Unified Agenda does not seem to indicate that PHMSA will be using the controversial vapor pressure testing that many environmental and safety advocates have been calling for. I have addressed some of the problems with vapor pressure testing in an earlier blog post.

Bills Introduced – 03-16-16

Yesterday with both the House and Senate in session there were 40 bills introduced. Of those, two may be of specific interest to readers of this blog:

HR 4765 To provide first responders with planning, training, and equipment capabilities for crude oil-by-rail and ethanol-by-rail derailment and incident response, and for other purposes. Rep. Herrera Beutler, Jaime [R-WA-3] 

S 2694 A bill to ensure America's law enforcement officers have access to lifesaving equipment needed to defend themselves and civilians from attacks by terrorists and violent criminals. Sen. Toomey, Pat [R-PA]

It will be interesting to see how comprehensive (expensive) HR 4765 will be and if it includes a funding source.

Unless this bill includes some mention of chemical protective equipment, it will probably not receive future coverage in this blog.

Note: There is a bill of personal interest that I would like to mention here:

HR 4752 To require the National Aeronautics and Space Administration to investigate and promote the exploration and development of space leading to human settlements beyond Earth, and for other purposes. Rep. Rohrabacher, Dana [R-CA-48] 

It will not be covered in this blog, but if there are positive developments I would expect to write about them on LinkedIn.

BNSF and Crude Oil Trains

There is a brief article at ProgressiveRailroading.com about the latest move by BNSF to protect themselves in the crude oil train controversy. It seems that yesterday they sent a letter to their customers outlining the steps that they intend to take to reduce crude oil train derailments. In addition to internal actions like further speed reductions in urban areas they intend to “to transition DOT-111 cars from shale crude service on our railroad within one year”.

While any number of safety and environmental advocacy groups would certainly applaud such action, this appears to be a publicity stunt more than a real action to prevent accidents. As long as PHMSA approves the use of DOT-111 cars for flammable liquid service BNSF is required under their common carrier obligations to accept the use of such cars on their system. While we are still waiting on PHMSA’s final rule on flammable railcars (expected in May) it is unlikely that PHMSA will phase out the use of the DOT-111 cars in less than a year; five years is the more likely time frame.

The big problem is that there are not enough newer railcars available to carry the current load of crude oil from the Bakken oil fields to the refineries located around the country. The older DOT-111 and the slightly safer unmodified CPC-1232 will have to be continued in use until the newer railcars built. And that is going to take three to five years at a minimum.

BASF can encourage shippers to use the newer cars all it wants. It is already facing a law suit in US District Court for adding a $1000 surcharge for each DOT-111 rail car used to ship crude oil. It will be interesting to see what kind of backlash will result from this newest attempt. The oil industry’s basic reply will be stop the derailments and the fires will stop.

More Information on WV Derailment

As clean up after Monday’s crude oil train derailment in West Virginia begins new information is starting to become available; some of it contradicts initial reports. As is typical for chemical related accidents in West Virginia a good source of information continues to be the Charleston Gazette.

No Water Contamination

One of the major concerns on Monday was the possible contamination of drinking water supplies by crude oil spilled into the Kanawha River. Early reports indicated that at least one crude oil tanker was in the river and there were even reports of oil burning on the river. It turns out that no tankers ended up in the water or were really even close to the river.

Given last year’s Freedom Industry spill it is understandable that local residents were concerned about drinking water contamination. Fortunately, safety procedures put into place after that spill were immediately implemented. This included shutting off water intakes on the river down stream of the accident and water testing by the West Virginia National Guard.

Newer Tank Cars

As with all of these crude oil train accidents initial concerns were focused on the relatively fragile DOT 111 railcars that make up a large portion of the crude oil transport fleet. It turns out that the cars involved in this shipment were the slightly newer CPC 1232 railcars that are supposed to hold up to derailments better than the older DOT 111 cars.

While we are still waiting on OMB to approve the PHMSA High-Hazard Flammable Trains final rule, it is interesting to note that last fall’s NPRM included upgrades to the CPC 1232 railcar design that would lessen the chance of crude oil discharges in accidents like this. We will have to wait and see if those changes made it into the final rule (I expect that they did) and what the timetable will be for their implementation.

Looking at photos of the derailment it certainly looks like the results of the accident could have been much worse if these had been DOT 111 cars; particularly if they had been the older models. One good side of the current cutback in crude oil production, many of those DOT 111 cars will be among the first idled.

Cause of Accident

We are still way early in the accident investigation process so it is premature to call out any possible cause of the derailment. I do find it interesting to look at a close up picture of a portion of the track where the accident occurred. The track is severely damaged. What is not clear is if this damage was caused by the accident or if it was the cause of the derailment. CSX is reporting that the track had been inspected just last week.

Political Fallout

As with each of these crude oil train derailments there have been numerous calls for federal action to prevent the derailments and reduce the possibility of the related spills, fires and explosions. I expect that there will be added pressure on OMB to quickly approve the PHMSA rule now under consideration.

Crude Oil Train Derailment in WV

The latest crude oil train derailment just occurred this afternoon in West Virginia in Kanawha County. As is fairly typical in WV the railroad track parallels the Kanawha River and a number of the rail cars have apparently ended up in the river. Fires and explosions have been reported in association with this accident.

The derailment took place upstream of Charleston, WV which had problems last year with the Freedom Industries spill. Local news reports have been very careful to announce that water intakes downstream of the spill have been closed to avoid contamination of the drinking water systems with the spilled crude oil.

More information will certainly be available in coming days.