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.

PHMSA Publishes Two Preemption Determination Requests

The DOT Pipeline and Hazardous Material Safety Administration (PHMSA) published two notices in today’s Federal Register {79 FR 21838-21840 (NY); 79 FR 21840-21842 (PA)} concerning requests by the American Trucking Association for determination of preemption of hazardous material permitting rules in New York City and Pittsburgh, PA. A determination of preemption would mean that the cities could not require the permits in question nor collect the fees for those permits.

New York City

The ATA has asked PHMSA to determine if the Federal Hazmat Transportation Law (49 USC Chapter 51) preempts the hazardous material transportation permitting requirements of Section 2702-02 of Title 3 of the Rules of the City of New York.

Pittsburgh

The ATA has asked PHMSA to determine if the Federal Hazmat Transportation Law (49 USC Chapter 51) preempts the hazardous material transportation permitting requirements of Chapter 801 of Title 8 of the Pittsburgh Code, Fire Prevention.

Public Comments

PHMSA is soliciting public comments on both petitions. Comments may be submitted via the Federal eRulmaking Portal {www.Regulations.gov; Docket # PHMSA-2014-0003 (NY) or Docket # PHMSA-2014-0002 (PA)}. Comments should be submitted by July 16^th, 2014.

PHMSA Publishes Lack of Preemption Notice

Today the Pipeline and Hazardous Materials Administrtion (PHMSA) published a notice in the Federal Register (77 FR 39567-39571) regarding the preemptive status of the Federal Hazardous Materials Regulation (HMR). The notice is in a response to a letter requesting clarification of that status in a State civil suit under common law. That request for determination was submitted in 2009 (74 FR 5723); so this is a timely response if there ever was one.

The short answer is provided in the summary:

“Federal hazardous material transportation law does not preempt a tort claim that a packaging, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material failed to meet the design, manufacturing, or marking requirements in the HMR or that a person who offered a hazardous material for transportation in commerce or transported a hazardous material in commerce failed to comply with applicable requirements in the HMR.” (77 FR 3567)

Now the claim here is complex and the legal arguments are mainly of interest only to lawyers (which once again I would like to point out that I am not), but the central issue here may have some implications for chemical facility security or cybersecurity.

First it is clear that the HMR has specific preemptive authority over State and local laws in several areas. According to this notice one of the specific areas covered under 49 USC 5912(b)(1) is:

“The designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material.”

The ruling in this notice clearly affirms that preemption but goes on to explain that:

“Federal hazardous material transportation law does not preempt tort claims that the packaging or packaging component failed to meet the design, manufacturing, or marking requirements in the HMR or that a person who offered a hazardous material for transportation in commerce or transported a hazardous material in commerce failed to comply with applicable requirements in the HMR.”

Now this legal notice only applies generally to PHMSA HMR preemption requirements and specifically only to this particular case, though it certainly establishes a precedent that will be argued in future such cases. The same general argument could be made, however, in cases where federal security regulations preempt State laws (for example CFATS).

For example if a high-risk chemical facility covered under CFATS had an approved site security plan (forget for the nonce that there is no such facility yet) and it was successfully attacked by a terrorist. Neighbors affected by that attack could argue the same lack of preemptive protection if they could prove negligence or malfeasance contributed to the success of the attack.

Or a critical infrastructure facility had a successful cyber-attack that resulted in hundreds of off-site casualties, but were covered by …. OOPS there is no cybersecurity legislation, current or in the works, that would regulate control systems at critical infrastructure facilities (excepting CFATS); so there would be no federal preemption that would have to be bypassed.