PHMSA Sends Oil Spill Response Plan Rule to OMB

Yesterday the DOT’s Pipeline and Hazardous Material Safety Administration sent a final rule to the OMB’s Office of Information and Regulatory Affairs (OIRA) concerning oil spill response plans for Highly Hazardous Flammable Trains (HHFT). The notice of proposed rulemaking (NPRM) for this rule was published in August of 2016.

According to the Unified Agenda abstract for this rulemaking, this final rule will:

• Expand the applicability of comprehensive oil spill response plans (OSRP) based on thresholds of liquid petroleum oil that apply to an entire train;

• Require railroads to share information about high-hazard flammable train operations with State and Tribal emergency response commissions to improve community preparedness in accordance with the Fixing America's Surface Transportation Act of 2015 (FAST Act); and

• Incorporate by reference an initial boiling point test [probably ASTM D7900] for flammable liquids for better consistency with the American National Standards Institute/American Petroleum Institute Recommend Practices 3000, "Classifying and Loading of Crude Oil into Rail Tank Cars," First Edition, September 2014.

As I have noted on a number of occasions, this rulemaking will not address the response to fires and explosions that have been such an obvious part of so many crude oil spills over the last five years. The OSRP requirements are derived from the Clean Water Act and deal with oil getting into water ways. Until Congress addresses the issue of responding to oil spill fires, this rulemaking will have little impact on addressing response to crude oil train fires.

HR 6072 Introduced – FY 2019 THUD Spending

Last week Rep. Diaz-Balart (R,FL) introduced HR 6072, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2019. The bill contains no program mentions of specific interest to readers of this blog, but the Committee Report does include mentions of cybersecurity, unmanned aircraft system (UAS), and chemical rail-transportation safety measures.

Cybersecurity

I do not generally comment on Department cybersecurity measures in these spending bills; those are typically IT related programs and I tend to concentrate on control system measures. I am making an exception here because the House Appropriations Committee made a very important cybersecurity observation that deserves wide recognition.

In discussing the Department of Transportation’s cybersecurity initiative, the Committee Report makes the comment that (pgs 28-9):

“DOT operates and oversees significant elements of the critical transportation and information technology infrastructure of the United States. Much of the DOT framework relies upon, and is integrated with, computer networks, computer mediated communications, online databases, and a wide variety of other computer and computer network capabilities. With the increasing interconnectivity and use of Internet-based technologies, new dependencies, relationships, and vulnerabilities are created as are new risks and new threats. Further, DOT’s privileged relationships with state and local governments, and private-sector elements within the transportation community, exposes operational elements of the transportation sector itself to the potential of a cyber compromise.”

This is the first time that I recall a government entity acknowledging that government networks and systems are potential routes of attack against privately owned/operated critical infrastructure. It is both refreshing to hear and breathtaking to consider the scope of that potential threat.

In the discussion of funding for the National Highway Traffic Safety Administration (NHTSA) the Committee report notes (pg 43) that $18 million of the NHTSA vehicle safety research funding is to be targeted “for vehicle electronics and emerging technologies, which includes research of cybersecurity and automated vehicle technologies”.

UAS Concerns

As can be expected the Committee has a number of concerns about the development and regulation of commercial UAS. Generally, the Committee (and much of Congress) is supportive of the increased operations of commercial and recreational drones. There are, however, two separate mentions of directives to develop counter-UAS technologies.

The first revolves around the on-going congressional concern about UAS operations near commercial airports. In the first instance the commends the FAA to (pgs 28-9) “promote research and demonstration activities for counter unmanned aircraft systems (CUAS) to protect airports and the national airspace (NAS)”. The Committee notes that these activities should be ‘nonkinetic’ and focus on the “capabilities to identify, monitor and track the UAS and UAS handset operator”.

The second focuses on another long standing congressional concern about the operation of UAS in and around fire-fighting scenes. The Committee directs the FAA (pg 29) “to develop

systems to detect and mitigate unauthorized UAS that interfere with firefighting efforts in our nation”. The Committee goes on to outline the requirements of such a system; the system should be able to:

• Detect, identify and track both the air vehicle and ground controller;

• Must be controlled by an entity that is independent from and would not be dependent on compliance by the UAS manufacturer or the UAS user/operator;

• Would have the capability to adapt to fluid borders;

• Differentiate between legitimate firefighting UAS and unauthorized UAS; and

• Not interfere with essential first responder communications systems

No specific funding for such system development was mentioned. This is in the preliminary stages and just requires an initial report to Congress within 120 days.

Chemical Rail Transportation Safety

The Committee Report addresses two long standing congressional concerns about topics under the proviso of the Federal Railroad Administration (FRA); safe transportation of energy products and positive train control (PTC).

In its discussions about the FRA’s Safety and Operations budget the report notes that the Committee is specifically allocating $2 million (pg 49) “for FRA’s safe transport of energy products programs, which include crude oil safety inspectors, safety route managers and tank car quality assurance specialists, tank car research, and increased mileage of ATIP [automated track inspection program] on routes that carry energy produces.”

The Committee is also targeting $10 million for the FRA’s PTC support program; noting that the FRA (pg 29) “expects to review up to 15 additional PTC plans from railroad companies in fiscal year 2019”.

Moving Forward

This bill will move the floor of the House in the coming weeks. The votes (see pages 170-5 in the Committee Report for the specific votes) in Committee indicate that there is significant opposition from the Democrats to some specific provisions of the bill, but there is some limited bipartisan support for the bill as a whole. Regardless, the bill will be brought to the floor under a structured rule with a large, but controlled number of floor amendments to be considered. The bill will almost certainly pass in the House.

The Democratic opposition would prevent this bill from being considered in the Senate were it not for the fact that the Senate will take up this bill and immediately amend it with substitute language from S 3023 which had strong bipartisan support in Committee. That version of the bill, after additional floor amendments will pass with bipartisan support. A conference committee will work out the discrepancies between the two bills.

Commentary

Interestingly there is no mention in either HR 6072 or Committee Report on the bill of the congressional concern with the slow pace of rulemaking on revisions to the Comprehensive Oil Spill Response Plan requirements for railroads. Readers will remember that the Senate Appropriations Committee included a ‘$1000,000 per day’ fine on PHMSA for not completing that rulemaking within 45 days of the passage of the THUD spending bill.

While there is not specific support for such a fine in the House bill, I do not suspect that there would be any strong opposition to including that fine in conference.

FRA Notifies Railroads that SERC Notifications Will Continue

The DOT’s Federal Railroad Administration (FRA) announced today that it was sending a letter to railroads that they were going to continue to require railroads to make notifications to “State Emergency Response Commissions (SERCs) and Tribal Emergency Response Commissions (TERCs) of the expected movement of Bakken crude oil trains through individual states and tribal regions”. That requirement comes from an Emergency Order issued in May 2014 affecting all trains carrying more than million gallons of crude oil from the Bakken oil fields.

Conflict with OMB

The HHFT final rule issued by Pipeline and Hazardous Material Safety Administration (PHMSA) in May actually contained provisions that cancelled the reporting requirements from the Emergency Order effective March 31^st, 2016; the day before the railroads were to have completed their route selection requirements under the revised 49 CFR 172.820.

The FRA had notified the OMB’s Office of Information and Regulatory Affairs (OIRA) of their intent to continue this reporting requirement until a new regulation on Oil Spill Response Planning could codify the requirements when they sought routine approval of the information collection request (ICR) supporting this reporting requirement. OIRA only approved the ICR thru March 31^st of next year noting that:

“Per the joint PHMSA-FRA HHFT final rule (RIN 2137-AE91), the information collection requirements in the May 7, 2014 emergency order remain in effect until March 31, 2016. OMB is therefore approving this collection until that date. FRA may submit a request to continue this collection after soliciting public comment per the PRA's [Paperwork Reduction Act; specifically 44 USC 3506(c)] requirements.”

This does not mean, that the extension of the ICR will not be approved, but it does mean that the railroads will have another political opportunity to derail the effort.

Rail Routing Information is SSI

Because of the changes that the HHFT final rule made to §172.820 the routing information of highly-hazardous flammable trains (HHFT) is protected as Sensitive Security Information (SSI) under 49 CFR 15 and 49 CFR 1520. And the crude oil trains covered in the Emergency Order are certainly covered under the HHFT definition.

One of the reasons that railroads had objected to sharing the information required in the Emergency Order was that it was specifically not protected under SSI procedures. This left the public dissemination of that information up to the discretion of the local agency and the State rules that governed information sharing. And, as the railroads feared, much of that information was released to the public; making it accessible to people that might attempt to disrupt the flow of those trains.

The wording of §172.820(h)(2) makes it clear that the protected information is limited to the routing information not the volume or type of oil carried or the frequency with which the trains would traverse the selected routes. A close reading of the regulation would seem to indicate that the routing information does not actually become SSI until the first time that the railroads complete their route analysis under §172.820(c). That won’t officially be done until April 1^st, 2016.

The FRA could have adopted the position in today’s letter to the railroads that for the purpose of moving forward with the continued notification and updates to SERTS that the routing portion of the information provided could be classified as SSI under authority of §172.820(c), thus pre-empting State and local sunshine act or freedom of information act laws for that information. Thus, SERTS would be required to only share that information with personnel with a need to know which would certainly include local emergency response and emergency planning agencies. The FRA obviously chose not to do so, adhering to the tightest interpretation of the rule.

This will have to be an issue that FRA addresses when they go back and re-submit the ICR for and extension of the reporting requirement past March 31^st, since after that date the routing information is clearly protected from public disclosure under the banner SSI.

Draft House THUD Spending Bill Published

Tuesday the House Appropriations Committee published a committee draft of the Transportation, Housing and Urban Development and Associated Agencies (THUD) spending bill for FY 2015 on their web site. There does not appear to be any special funding for studying or improving the safety of crude oil transportation by rail included in the bill. The Committee summary of the bill does note, however, that:

“Also included is $205.2 million for the Pipeline and Hazardous Materials Safety Administration, an increase of $19.4 million over the fiscal year 2014 enacted level, to help address a variety of safety concerns, including those related to the transport of crude oil, coal, and other hazardous substances.”

Funding for the Federal Railroad Administration, on the other hand, has been reduced by $193 million from last year’s appropriation. Safety and research funding has been increased by $750,000, but it appears to be targeted at passenger safety not crude oil transportation issues.

The markup process started yesterday with a markup hearing by the Transportation, and Housing and Urban Development, and Related Agencies Subcommittee. There is no public information available about the results of that hearing; in fact, there is no mention of the hearing on the House Appropriations Committee web site.