PHMSA Publishes Train OSPR Final Rule

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (84 FR 6910-6952) on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”. The notice of proposed rulemaking (NPRM) was published in July 2016. The rulemaking modifies existing requirements for comprehensive oil spill response plans (COSRPs), establishing petroleum oil thresholds that apply to an entire train consist. The rule also requires railroads to share information about high-hazard flammable train (HHFT) operations with State and tribal emergency response commissions to improve community preparedness. It also incorporates a new voluntary standard for testing initial boiling point of crude oil; ASTM D7900.

The preamble to the rule makes it clear that the final rule implements the provisions of the NPRM “with minor changes for plain language or clarification in consideration of the comments received to the NPRM”. The preamble provides tables with the summary of the differences between the NPRM and the final rule:

Comprehensive oil spill response plans; and

HHFT information sharing for emergency response plans;

No changes were made to the portion of the rule incorporating the new initial boiling point test method.

The effective date for this rule is April 1^st, 2019.

Commentary

As I have stated before, while I think that the change in threshold requirements for COSRPs is appropriate, it continues to fail to address the planning requirements for addressing the fire and explosion response planning necessary for Highly Hazardous Flammable Trains (HHFT). Unfortunately, neither PHMSA nor the Federal Railroad Administration have been provided authority to require such emergency response planning. This is going to require congressional action.

HR 7076 Introduced – Electronically Controlled Breaks

Last week Rep. Herrera-Beutler introduced HR 7076, the Oil and Flammable Material Rail Transportation Safety Act. The bill would require DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) to re-instate 49 CFR 174.310 requirements for electronically controlled pneumatic (ECP) brakes on high-hazard flammable unit trains (HHFUT) operating in excess of 30-mph.

Those ECP requirements were removed by PHMSA in a final rule on September 25^th, 2018. That action was required by Congress in §7311 of the FAST Act (PL 114-94, 129 Stat. 1601) after PHMSA published the new regulatory impact analysis (RIA) (.PDF Download) required by that act that showed that the costs of the ECP requirement significantly outweighed the benefits (see pgs 78-9 of the RIA).

Section 2 of the bill would nullify that rulemaking and return the ECP brake requirements to §174.310.

Moving Forward

Herrera-Beutler is not a member of the House Transportation and Infrastructure Committee to which this bill was assigned for consideration. This means that she is unlikely to have the influence necessary to have the bill considered in Committee.

There would be significant railroad opposition to this bill which means that it would likely draw major opposition in Committee and on the floor of the House if it were to make it that far. The bill is extremely unlikely to be considered in the 115^th Congress and would not pass if it were.

Commentary

This is an unusual bill to be proposed by a Republican, but her district is well known for its concern about the oil trains moving through the area, so the bill makes good sense from a campaign perspective in that district. I doubt that there is any downside in corporate support because of the introduction of this measure since the railroads would certainly understand that this bill will not go anywhere in this Congress.

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.

PHMSA Announces Oil Spill Response Planning Workshop

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a meeting announcement in the Federal Register (81 FR 17765-17766) for a public workshop to be held in Washington, DC on April 12^th, 2016. The purpose of the meeting is to discuss Oil Spill Response Plans covered by PHMSA’s 49 CFR Part 130 and Part 194 regulations. The meeting will be web cast.

The Notice

The notice does not include an agenda for the meeting; that will be published at a later date on the meeting web site. The notice does explain that the workshop will “bring federal regulators, interested members of the public, industry, and other stakeholders together to share knowledge and experiences with oil spill response planning and preparedness, gather ideas for harmonizing PHMSA’s regulations with other agencies, and discuss practical ways regulated entities can better plan and prepare for an oil spill.”

Public Participation

The meeting and the web cast are both open to the public. Advance registration for attending the meeting in person is recommended because of limited seating. Registration can be completed on the meeting web site.  Written comments may be submitted up to 30 days after the workshop. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2016-0021).

Commentary

As I have mentioned a number of times in this blog, the biggest shortcoming in the oil spill response planning requirements for both PHMSA and the Coast Guard is that they only address the environmental impacts of oil contamination of water ways. While this is certainly an important area of concern, the crude-oil train accidents of the last couple of years have pointed out a serious problem of more immediate safety concern to the public; fires and explosions related to highly hazardous flammable train (HHFT) derailments.

The recent increase in the number and size or unit trains (most commonly crude oil and ethanol, but also other commodity hazardous chemicals) has greatly increased the chance that a hazardous material containing railcar will be involved in any given derailment. With the flammability of ethanol and many varieties of crude oil, the chance of a catastrophic fire related to these derailments has increased dramatically. Most fire departments cannot afford to keep the specialized firefighting equipment on hand to deal with these hazmat fires, especially given the very low chance of occurrence of an HHFT derailment in any particular community.

Federal, State and local governments, along with the railroads and hazmat shippers need to come together to address the increased risk of HHFT derailment fires. This PHMSA workshop should be a good place to start that discussion.

HR 4765 – HHFT Response Grants

This week Rep. Herrera (R,WA) introduced HR 4765, the Fire Department Proper Response and Equipment Prioritization Act. The bill would require FEMA to give high priority to grants for incident response training for crude oil and ethanol train accidents.

Assistance to Fire Fighters Grants

The bill would amend 15 USC 2229(c), Assistance to firefighters grants, by adding a new paragraph (4) that would require FEMA to “give high priority consideration to grants providing for planning, training, and equipment to firefighters for crude oil-by-rail and ethanol-by-rail derailment and incident response”.

No additional funding is provided.

Moving Forward

Herrera is not a member of the Science, Space and Technology Committee to which this bill has been assigned. Thus it is unlikely that she would be able to influence the Committee to take up this bill. The alternative would be to use this language as a floor amendment to either a FEMA authorization bill or the DHS spending bill. In either case it would be unlikely that there would be any substantial opposition to the amendment.

Commentary

I can sympathize with any congressman that has oil or ethanol trains transiting communities within their district. While there have been a number of high-profile crude oil train accidents in the last couple of years, the actual threat to any given community is quite remote. But if an accident did occur the community would rely on their emergency response personnel to be trained and equipped to handle such a situation.

Many (if not most) communities do not have the spare training and equipment funds to finance operations of such low potential occurrence. This is where local communities tend to turn to the deep (relatively) pockets of the federal government for assistance. Those pockets are not deep enough, however, to fund every community for every year for such training and equipment. And training, if not repeated or practiced frequently, becomes stale and ineffective.

For low frequency, high-impact events like these rail catastrophes would probably be more effectively served by training and equipping a fast acting state or regional response team. The equipment costs for each team would be higher due to having to be able to respond quickly over longer distances (probably require air transport), but it would be lower than training and equipping each fire department along the train routes.

The other problem with this bill and others like it that expand grant uses or influence the grant funding process without providing additional funds it that they really only serve to dilute the limited money available for these grants. Particularly for low frequency events like this, grants to one community will mean that another community with a more likely occurrence that needs grant money will not get it.

OMB Approves PHMSA HHFT ICR

Yesterday 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) information collection request (ICR) supporting it High-Hazard Flammable Trains regulations that were adopted last year. The 60-day ICR notice was published in May of last year.

I had noted in my blog post on the initial notice that the ICR only reported route reporting and analysis requirements for the HHFT ICR were for Class II and Class III railroads. That is confirmed in the ICR approved yesterday. The supporting document [.DOC download] provided to the OMB by PHMSA states that: “This analysis will be conducted by both Class II and Class III railroads.” (pg 7). It does not seem reasonable that the Class I railroads (which will haul the bulk of HHFT trains) would be exempt from this requirement, so I decided to look at it in detail.

The supporting document (pg 2) states that the routing and analysis requirement comes from 49 CFR 174.310(b)(1). That is actually a misprint since (b) is reserved; it should read §174.310(a)(1) and that sub-paragraph reads:

“Routing. The additional planning requirements for transportation by rail in accordance with part 172, subpart I of this subchapter;”

That actually refers back to §172.820 which originally dealt with rail shipments of certain explosives, toxic inhalation hazard chemicals, and route-controlled radioactive materials. The HHFT rule added high-hazard flammable trains {§172.820(a)(4)} to the materials requiring the route analysis. The original route analysis information collection was added to the Hazardous Materials Security Plans (HMSP) ICR (2137-0612) in 2008. The supporting document [.DOC download] for that ICR clearly lists (pg 10) Class I, Class II and Class III railroads as reporting entities.

That supporting document estimated the subsequent year burden (initial year burden is higher due to setting up the internal data collection system) for the route analysis to be: Class I 960-hrs, Class II 2048-hrs, and Class III 1600-hrs. Over the years renewals and modifications to the security plan ICR have resulted in some changes to the burden estimate. The table below shows the most current data [.DOC download] for the HMSP ICR and the HHFT ICR that was just approved.

	HMSP (2014)	HHFT
Class 1 (hrs)	4,800	Not reported
Class II (hrs)	10,240	4,000
Class III (hrs)	8,000	12,800

A few of things come to mind from doing a detailed look at the ICR data provided to OMB on these two ICRs. First the current ICR should never have included data on the route analysis in the collection requirement. That was a change that was made to §172.820 and the HHFT data should have been included in an update to the HMSP ICR. Either that or HMSP ICR should have had that route analysis portion removed and all route analysis data should be reported under the new HHFT ICR.

Second, the numbers that are reported on the HHFT ICR seem to indicate that the Class III railroads will be carrying a disproportionate share of the highly-hazardous flammable trains. Unless there is some reason that the smallest railroads will be carrying more of the crude-oil unit trains (that make up the bulk of the HHFT) than we see them carrying the other hazardous materials listed in §172.820, these relative numbers do not seem reasonable.

Finally, there is no reason given why Class I railroads have not been included in the route analysis portion of the new ICR. They are clearly covered in the regulations as there are not different requirements based upon the size of the railroad.

In short, there is an awful lot about this ICR that just does not make a lot of sense. If you want my guess, I suspect that the HHFT ICR data is really for Class I and Class II railroads and that either PHMSA did not expect Class III railroads to be carrying HHFT or the data just got left off by mistake somehow.

Now, here is an interesting question to consider. Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Since Class I railroads have not been included in this HHFT ICR, do they have to provide the information required under §172.820(c)? My guess is technically no, but I suspect that they will do it anyway.

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.

House Amends and Passes HR 2577

Yesterday the House finished action on the FY 2016 THUD spending bill, HR 2577. While there were no new provisions in the original bill that would be of specific interest to readers of this blog there were a couple of amendments brought to the floor that might peak that interest. The bill passed by a very close (216 to 210) due to the defection of 31 Republicans.

Pipeline Safety Amendments

There were a couple of amendments from Rep Capps (D,CA) that proposed modifying some of the funding for the pipeline safety segments of the bill. She attempted (CREC, 613-15, pg H3856) to increase the industry funded Oil Spill Liability Trust Fund by almost $28 Million, but was defeated on a vote that was very similar to the final vote on the bill, 202 to 222.

She was successful (CREC, 6-3-15, pg H3856) in adding an amendment that would earmark $1 Million of the PHMSA funding for completing the regulation for requiring the addition automated shut shutoff valves and leak detection on pipelines. This was not new funding, just specifying how some of the standard appropriation for the Oil Pollution Spill Liabilty Trust Fund would be spent.

HHFT Funding

There was an attempt by Rep. Gosar (R,AZ) to strip funding (CREC, 6-4-15, pg H3886) for the enforcement of the recent DOT Highly-Hazardous Flammable Train (HHFT) regulations. While most of Gosar’s ire was directed at the new railcar standards, the amendment would have stopped all funding for the enforcement of the regulation. This amendment was defeated in a mainly bipartisan vote of 136 to 286.

Drones

Rep. Newhouse (R,WA) introduced an amendment that would prevent the FAA from spending money to implement or enforce their recent rulemaking on Drones unless agricultural uses were specifically addressed. The original amendment (CREC, 6-9-15, pg H3978) was withdrawn due to a registered point of order on the language (presumably the standard ‘legislating in a spending bill’ objection). A modified version was subsequently offered that would prohibit implementing any drone rules unless they followed the restricted category certificate requirements of 14 CFR 21.25(b)(1).

The second version of the amendment was adopted by a voice vote.

Moving Forward

The close vote in the House indicates that there might be problems in getting this bill onto the floor of the Senate for consideration. The Democrats in the Senate have already indicated that they intent to oppose any spending bills that continue the sequestration program, but the Republican leadership had hoped that this bill would get to the floor with the backing of some moderate Democrats. If any Republican Senators join those from the House that objected to this bill, there is no way that there will be enough Democratic votes available to bring this bill to the floor.

PHMSA Final Rule on HHFT – Speed Limits

This is part of a continuing look at the recently published final rule on highly-hazardous flammable trains (HHFT; HM-251). Earlier posts in the series include

DOT and Canadian Transport Ministry Announce New HHFT Final Rule

PHMSA Final Rule on HHFT – Route Selection

In this post I’ll look at the speed limit requirements set forth in this final rule. As with many of the requirements these speed limits only apply to HHFT. As a reminder, the rule defines an HHFT as:

∙ A single train transporting 20 or more loaded tank cars containing Class 3 flammable liquid in a continuous block; or

∙ A single train carrying 35 or more loaded tank cars of a Class 3 flammable liquid throughout the train consist.

Pre-Rule Speed Limits

The preamble to the rule explains that, in general the current regulations establish train speed limits based upon track classifications with a maximum speed limit on the best track for freight trains set at 80 mph. Design specifications from the Association of American Railroads (AAR) set a practical limit of 70 mph.

Railroad protocols for the transportation of hazardous materials set an even lower speed limit. The preamble notes that AAR Circular OT-55-N includes a 50-mph maximum speed for any “key train,” including any train with 20 car loads of “any combination of hazardous material.” In February of last year railroads further agreed to limit the speed of crude oil trains to 40 mph in High Threat Urban Areas (HTUA; see 49 CFR 1580.3, list, maps).

The Options

Last summer the notice of proposed rulemaking (NPRM) for this rulemaking proposed changes to the speed limit requirements. The first was to make official the 50 mph speed limit for HHFT. Then they offered three options for further speed reductions for HHFT that contained even one rail car that did not meet the new DOT 117 standards:

Option 1 – 40 mph limit in all areas;

Option 2 – 40 mph in urban areas with a population of greater than 100,000 people;

Option 3 – 40 mph in HTUA

Finally PHMSA proposed an even lower speed limit (30 mph) in HTUA if the train did not meet the Advanced Brake Signal Propagation Systems described in the NPRM.

The preamble to the final rule provides a detailed discussion of the more than 90,000 public comments received on the NPRM speed proposals as well as the different speed limits proposed in some of those comments.

Final Standards

In the end it came down to the cost benefit analysis required of the agency by federal law. In this case, faster speeds meant lower costs but increased accidents and consequences. Lower speeds meant fewer accidents and reduced consequences.

In the new 49 CFR 174.310 PHMSA added paragraphs describing the speed restrictions for HHFT. Section 174.310(a)(2) sets the 50 mph speed limit for all HHFT and a 40 mph speed limit for any HHFT that contains a loaded with a Class 3 Flammable Liquid that does not meet the DOT 117, DOT 117P, or DOT 117R standards.

Additional speed limitations are set for trains not equipped with specific breaking systems. Section 174.310(a)(3)(i) requires that any train not equipped and operated with either a two-way end-of-train (EOT) device, or a distributed power (DP) system has a maximum speed limit of 30 mph.

Section 174.310(a)(3)(ii) includes a new train designation, highly-hazardous flammable unit train (HHFT with 70 or more flammable rail cars of which at least one is PG I). HHFUT are limited to 30 mph after January 1^st, 2021 unless the train is equipped with ECP brakes, except for buffer cars, and must be operated in ECP brake mode.

DOT and Canadian Transport Ministry Announce New HHFT Final Rule

At a press conference this morning the Secretary of Transportation and the Canadian Minister of Transportation announced the issuing of the new DOT highly-hazardous flammable train regulations (HM-251). A copy of the final rule (.PDF Download) was signed today by Secretary Foxx and it should be published in the Federal Register sometime next week. It should be noted that the OMB’s OIRA has still not ‘approved’ the HHFT rule.

According to a summary document (.PDF Download) provided by the DOT press release issued today the rule addresses the following areas:

∙ Enhanced Braking;

∙ Enhanced Standards for New and Existing Tank Cars Used in HHFTs;

∙ Reduced Operating Speeds;

∙ More Accurate Classification of Unrefined Petroleum-Based Products;

∙ Rail routing - Risk Assessment; and

∙ Rail routing – Notification

For the public, the most controversial portion of this rule will be those dealing with the changing railcar standards and the associate phase out dates. The summary document explains those this way:

∙ New tank cars constructed after October 1, 2015 are required to meet enhanced DOT Specification 117 design or performance criteria for use in an HHFT.

∙ Existing tank cars must be retrofitted in accordance with the DOT-prescribed retrofit design or performance standard for use in an HHFT.

∙ Retrofits must be completed based on a prescriptive retrofit schedule. The retrofit timeline focuses on two risk factors, the packing group and differing types of DOT-111 and CPC-1232 tank car.

∙ A retrofit reporting requirement is triggered if consignees owning or leasing tank cars covered under this rulemaking do not meet the initial retrofit milestone.

I will be doing a more detailed look at the specific provisions of this draft of the final rule in future blog posts.

OMB Approves Emergency FRA ICRs

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) reported that it had approved three emergency information collection requests (ICR) from the DOT’s Federal Railroad Administration. These ICRs support recent actions taken by the FRA to increase the safety of highly-hazardous flammable trains. These ICR’s specifically address information collection requirements for:

∙ FRA Safety Advisory 2015-01 (OMB # 2130-0607);

∙ FRA Safety Advisory 2015-02 (OMB # 2130-0608); and

∙ FRA Emergency Order No. 30 (OMB # 2130-0609).

In each case OIRA approved the emergency ICRs with an end date of October 31^st, 2015. The FRA request did note that they intended to renew the ICRs for the two safety advisories in regular order, but that the ICR for the emergency order would be superseded by the ICR for HM-251, the HHFT rulemaking expected to be published later this month.

Burden Estimates

Here are the burden estimates for these three ICRs:

	2130-0607	2130-0608	2130-0609
Annual Responses	351,000	50	25
Burden Hours	6,333	100	1,000

The burden estimate for 2130-0607 is based upon (WORD® download) an estimate of the number of automated reports from Wheel Impact Load Detectors (WILD) along routes traveled by affected trains. The subsequent information collection will be the submission of work orders to deal with the maintenance requirements specified in the safety advisory. There is no indication of the basis for this number of estimated WILD reports or if it takes into account the recommended (but unspecified number of) new WILD installations.

The burden estimate for 2130-0608 is based upon (WORD® download) the FRA estimate of the number of accidents involving HHFT trains each year; they are estimating 50 such accidents. This under-estimates the number of responses because the FRA may request information from both a railroad and multiple stakeholders for any given accident. The actual number of requests per accident would be difficult to estimate.

The burden estimate for 2130-0609 is based upon (WORD® download) the FRA estimate of the number of petitions the FRA expects to receive for the use of alternatives to the safety requirements outlined in the Emergency Order.

FRA Publishes Emergency Order

The DOT’s Federal Railroad Administration is publishing a copy of Emergency Order #30 in Monday’s Federal Register (84 FR 23321-23326; available on-line Saturday) more than a week after it was published on the DOT web site. This causes an interesting issue with effective dates; the document says that it takes effect immediately and must be implemented by April 24^th, 2015, three days before its publication in the Federal Register. The FRA obviously provided the railroads directly with a copy of the EO when it was originally published so this isn’t a real problem; it just looks like one.

I have discussed the provisions of this emergency order and the Canadian counterpart that was issued this week. The Canadian directive extends the lower speed limit to a much smaller cities than does this emergency order. While that difference may just reflect differences in population density, in the United States this means that there are many more ‘large’ urban areas that are not protected by this order than are.

Again, the FRA is not soliciting public comments on this Emergency Order, not unexpected since they have already made their safety determinations on this matter. It will, however, be interesting to see how much of this shows up in the HHFT final rule expected out in just a little over two weeks now.

PHMSA-FRA Publish HHFT Information Requirements

Today the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published the Federal Register two of the documents posted to DOT web sites last Friday that I have been discussing. The first is the joint PHMSA/FRA safety advisory on information needed in accident investigations (80 FR 22778-22779). The second is the PHMSA notice on emergency response information requirement (80 FR 22781-22782).

PHMSA is not soliciting public input on either document. In fact, the comment period on the first document is listed as closed on the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2015-0118).

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

This is part of a detailed look at several actions that the Department of Transportation (DOT) took on 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

This post will look at the Federal Railroad Administration’s (FRA) emergency order concerning the maximum speed in selected urban areas for certain trains transporting large quantities of Class 3 flammable liquids.

Affected Trains

EO 30 will specifically apply to trains containing a continuous block of 20 tank cars or a total of 35 tank cars carrying Class 3 flammable liquids. At least one of the tank cars must be DOT 111 (including those built to the CPC 1232 standards).

This definition of affected trains was apparently designed to address criticism of the 20 tank car standard included in HHFT NPRM could apply to trains carrying single cars of flammable liquids from 20 different shippers, hardly the intent. The hazard for flammable liquids in rail car derailments is that the failure of containment from a single car could result in a pool fire that would cause the catastrophic failure of adjacent cars, compounding the disaster.

One could certainly make an argument for a smaller block of cars. Even a block of two cars raises the potential hazard for secondary involvement. But given the fact that very few derailments involve even the majority of cars in an affected train some number of train cars above two in a block would provide adequate protection against secondary involvement. It would be nice, however, for PHMSA to outline in detail how the number 20 was arrived at.

High-Threat Urban Areas

This Emergency Order would only affect the speed limit for trains transiting high-threat urban areas (HTUA) as defined in 49 CFR 1580.3. That definition from the rail transportation security regulations describes an HTUA as “an area comprising one or more cities and surrounding areas including a 10-mile buffer zone, as listed in appendix A [link added] to this part.” Maps of each of the current 46 HTUAs are currently available on the Transportation Security Administration web site.

A quick look at the Los Angeles, CA HTUA for instance shows that there are large urban populations and highly concentrated suburban populations outside of the designated HTUA. Given that there are only 46 designated HTUAs in the United States, it is easy to see that there are significant number of large urban areas that are not covered by this EO.

Speed Limit

The EO sets a maximum speed limit of 40 mph for affected trains in HTUAs. This is the same speed limit for HTUAs that was included as one of the three options for specific reduced speed limits in the HHFT NPRM. The other two options provided in the NPRM also set a 40 mph speed limit, but provided a different standard for the application of that limit. The first was to apply the limit to all HHFT trains carrying DOT 111 rail cars in flammable liquid service and the other was to define the area for the speed limit so as to include all areas with a census population greater than 100,000.

Effective Date

The effective date for this emergency order was listed as immediately (presumably yesterday’s date; 4-17-15) and the compliance date for the speed limits is April 24^th, 2015. I expect that we will see this EO published in the Federal Register next week, but that should not affect the effective date nor the compliance date.

HHFT Final Rule Insight

I would assume that the differences between this Emergency Order and the earlier HHFT NPRM reflect responses to comments to that NPRM. That should mean that the definition of HHFT in the final rule will probably be the same as outlined in this Order. Similarly, I would expect that the speed limits area definition here will be reflected in the final HHFT rule.

DOT Takes Additional Actions on Crude Oil Trains

Today the Department of Transportation published six new documents outlining new actions that PHMSA an FRA were taking to reduce the risks associated with the transportation of crude oil and other flammable liquids in unit trains or blocks of cars. The new documents are:

∙ PHMSA Notice – Emergency Response Information Requirements

∙ PHMSA Safety Advisory – Railroad Flammable Liquid ER Information Requirements

∙ FRA Emergency Order – Maximum Speed Limit for HHFT in HTUA

∙ FRA Safety Advisory – Wheel Inspection Requirements for HHFT

∙ FRA ICR Notice Change – Incident Report

∙ FRA Letter to AAR

A DOT blog post by Secretary Foxx outlines the new requirements and actions being published today. These actions are being taken while the highly-hazardous flammable train (HHFT) rulemaking is still under review at the Office of Management and Budget. Congressional sources have said that the rulemaking is expected to be published on May 12^th, 2015.

PHMSA also has a new web page providing a history of actions that the Department has taken to date to increase the safe transportation of energy products.

There is also a note that FEMA is also addressing the emergency response information issue in a separate blog post.

I’ll have further information after I have had a chance to conduct a review of the documents.

S 859 Introduced – Crude Oil Transport

As I had mentioned in an earlier posting Sen Cantwell (D,WA) introduced S 859, the Crude-By-Rail Safety Act. The bill is an attempt to comprehensively address the safety issues involved in the shipment of crude oil by railroad.

Definitions

Section 2 provides definitions of terms used in this bill. They include:

∙ High-hazard flammable train;

∙ Oil;

∙ Rail carrier; and

∙ Worst case discharge

The HHFT definition is essentially the same as PHMSA used in their notice of proposed rulemaking. As I mentioned in my post about that NPRM, this expansive application of the definition of HHFT could affect many more industries than just the crude oil and ethanol industries originally intended.

The definition of oil is also overly expansive. The authors were attempting to insure that they covered all of the crude oil sources in their definition, but by defining ‘oil’ as “oil of any kind

or in any form” {§2(2)} they have also included non-hazardous (for rail transport) oils such as mineral oil and vegetable oils.

Rulemaking

Section 3 of the bill sets out a number of safety rulemakings required to be completed by the Secretary of Transportation. This section sets out a 90-day time limit to issue a final rule on each of these rulemakings. The time limit is part of a congressional over reaction to the lengthy time that it takes federal agencies to complete rulemakings. Unfortunately, meeting the 90-day limit is not possible if the agency is to complete the congressionally mandated process for rulemaking and this bill does not provide the agency with an exception to that process.

Section 3(a) requires the Secretary to establish an interim standard for the maximum volatility of crude oil (not defined in the bill; perhaps the definition of ‘oil’ should be changed to ‘crude oil’) based upon vapor pressure. As I mentioned in my discussion of HR 1679, the use of vapor pressure as a standard is going to have to be set for a specified temperature that can be expected to be reached incident to transportation. Setting a vapor pressure standard for any other temperature will not adequately reflect the maximum vapor pressure obtained in transportation. A good operational definition would be 10% lower than the setting of the pressure relief device at 140°F using test method ASTM D6336.

Section 3(b) would then require the conduct of a formal study to set a final crude oil volatility standard. The study would conducted by DOT in conjunction with DOE instead of being done by one of the independent scientific bodies usually tasked with such studies. There is a two year time limit to conduct the study with a follow-on requirement to establish that standard by regulation in Section 3(c).

Sections 3(d) and (e) would require the completion of the current HHFT rulemaking within the 90 day limit. Since the final rule is currently scheduled to be published on May 12^th (according to the House Committee on Transportation and Infrastructure) these two sections may be superfluous.

Unsafe Tank Cars

Section 4(a) establishes minimum safety standards for tank cars in oil and ethanol service. The Secretary is required to “immediately prohibit the shipment of oil” in DOT 111 cars that have not been upgraded to the CPC 1232 standards or in unjacketed CPC 1232 rail cars. Here is where the overly broad definition of oil would prohibit the use of these tank cars for non-hazardous products.

Ethanol shippers would have two years to stop using the same cars prohibited above.

Paragraph 4(a)(3) adds an vague requirement for shippers of ‘oil and ethanol’ to “take additional precautionary measures to enhance the safe shipment of such liquids, including by avoiding the shipment of such liquids in tank cars with unsafe tank car attributes identified by the Secretary of Transportation, to the extent practicable”. The ‘measures to enhance the safe shipment’ phrase is so vague as to be meaningless. The ‘avoiding… to the extent practicable’ phrase, on the other hand, seems to allow continued use of DOT 111 railcars if the discontinuance would not be ‘practicable’. I’m pretty sure that that was not the intent, but it certainly seems to be what the words mean.

Rail Inspections

Section 5 addresses the issue of the inspections. Section 5(a) requires additional rail and rail geometry inspections on routes over which even 1 HHFT train is operated but it does not provide a time limit of how often that one train operates on that line. Since the time frame for the inspections are ‘per calendar year’, perhaps the intent is one HHFT train per year.

Section 5(b) address the shipper inspection requirement to sample and test 5% of the rail cars loaded with crude oil for volatility and to ensure that they meet the interim volatility standard set above. Interestingly §5(b)(1)(B)(ii) requires that the final volatility standard is more restrictive than the interim standard. This was not part of the requirements of §3(b).

DOT is required by §5(b)(2) to conduct their own spot checks of crude oil volatility, though no inspection rate is specified. Additionally, DOT is required to audit shipper records of their 5% volatility. Again no audit frequency standard is specified and it is unclear how PHMSA (the agency responsible for Hazmat issues) manpower would be able to conduct a reasonable rate of audits of crude oil shippers.

General Fine Increase for Hazmat Violations

Section 6 makes substantial increases in the maximum fines set in 49 USC 5123 for violation of US Hazmat transportation laws. The fine for knowingly violating provisions of 49 USC Chapter 51 is increased from $75,000 to $500,000 per violation {§5123(a)(1)}. The maximum for the enhanced penalty (resulting in death, substantial destruction of property, or significant environmental damage) is raised from $175,000 to $1,000,000 per violation {§5123(a)(2)}.

Interestingly, the way the amendment of §5123(a) is written it erases the current §5123(a)(3) which deals with the reduced penalties for violating the training requirements of Chapter 51. It does not appear that this was done intentionally.

Since none of the requirements in the earlier sections of this bill made any modifications to Chapter 51, violations of these requirements would not be covered by §5123(a) (which calls into question why §6(a) was included in this bill). As a result §6(b) and (c) make violations of volatility rules and the inspection rules of this bill finable at the enhanced violation rate.

Transportation Safety Programs

Section 7 requires the Secretary to ‘establish or expand’ ten different safety programs or initiatives relating to the transportation of ‘energy products or other Class 3 flammable liquids’ by all land modes. The section would authorize $40 million for this establishment or expansion.

Oil Spill Response Plans

Section 8 requires the Secretary (within 180 days) to amend 49 CFR 130, Oil Spill Prevention and Response Plans to address issues related to discharges from unit trains or blocks of tank cars. Specific measures to be addressed include:

∙ Current 1,000 barrel minimum container size “to account for worst-case discharges resulting from accidents involving unit trains or blocks of tank cars” {§8(b)(1)(A)}; and

∙ Plan requirements for discharges that may impact “a water body or other area that is subject to the jurisdiction of the Coast Guard or of the Environmental Protection Agency” under 33 USC 1251 et seq {§8(b)(1)(B)}.

This section only addresses classical oil spill response plans that deal with limiting the spread of spilled oil, cleaning up that oil and then mitigating the damage done by the oil. It does not address the fire hazard in any way.

Disclosure Requirements

Section 9 expands on the current DOT Emergency Order requirements to notify State Emergency Response Commissions (SERCs) of oil train routes. It would require prior notification of SERCs and Local Emergency Response Committees along routes over which even one HHFT would travel. There is no mention of restrictions or requirements on information sharing by those local agencies.

Emergency Response Resources

Section 10 requires the railroads to “collaborate to develop an inventory of emergency response resources along routes over which 1 or more high-hazard flammable trains operate” {§10(a)}. The inventory would include both spill control equipment and equipment to respond to fires and explosions. The inventory would also include where the equipment was stored and point of contact information for that equipment.

The railroads are required to provide DOT access to the inventory (not provide DOT with a copy) and to make relevant portions available to emergency response personnel upon request.

There is no requirement to have any certain amount of equipment available. Nor is there a requirement to have it available at any specific point in time relative to an accident.

Close Call Reporting

Section 11 amends 49 USC by adding a new section; §20168, Confidential close call reporting. The new section would require the Secretary of Transportation to publish regulations (within 1 year) to outline requirements for railroads to establish a close call reporting program. The railroad programs would include the following elements {§10(d)}:

∙ Provide a safe environment for its employees to report unsafe events and conditions;

∙ Ensure reporting employees are protected from railroad carrier discipline;

∙ Use collected information to develop and implement targeted corrective actions;

∙ Use collected information to supplement inspection data in identifying safety issues and emerging risks before they develop into accidents.

While there is nowhere in the new section that requires sharing of the reported information with DOT, §20168(g) does allow the Secretary to use the information when:

∙ When implementing or updating the Federal Railroad Administration’s National Inspection Plan;

∙ When performing focused inspections; or

∙ When developing agency rulemakings and guidance, as appropriate.

It is hard to see how the industry would not see the second use as a way around the prohibition of using the information produced in regulatory actions. This allowed use of the information would probably stifle railroads from sharing the reported information with DOT.

Reports to Congress

No legislation that billed itself as comprehensive could be complete without at least one report to Congress. This bill has two. The first is a report contracted out to the Transportation Research Board of the National Academy of Sciences on liability and insurance issues for HHFT. The second is a multi-departmental review of the current regulations concerning the transportation of energy products by all modes of transportation.

Moving Forward

Given the Republican control of the Senate there is almost no way that this bill will be considered in committee (Senate Committee on Commerce, Science and Transportation).

Commentary

The big problem with this bill is the immediate phase out of the DOT 111 cars. While everyone understands the safety concerns with those cars, the current level of flow of crude oil to refineries cannot continue in the near future without the use of these cars. Shutting down that flow to only what the jacked CPS 1239 cars and the newer tanker cars can carry would cause most drilling operations in this country to cease. The economies of North Dakota, Wyoming, Colorado, Oklahoma and Texas would take a severe hit, in some cases a devastating hit.

More importantly there would be a huge surge in gasoline and natural gas prices that would hit the entire economy as the United States suddenly had to compete with the rising gasoline consumption economies of China and India on the international market. It would provide a huge surge of money to Russia, Venezuela, Iran and probably ISIL; money that would further stabilize their current regimes and advance their anti-American agendas.

On top of all of that the bill is poorly written with all sorts of obvious unintended consequences.

HHFT ICR Follow-up

On Friday I closed out my post on the OMB’s publication of the Flammable Train ICR data by saying that:

“Either PHMSA is understating the ICR burden or it does not intend for Class I railroads (who are responsible for the bulk of the miles of crude oil transportation) to conduct the routing analysis that will be required by this new regulation. I hope (and expect) that it is the former.”

It has been brought to my attention that the probable reason that PHMSA did not list Class I railroads in their ICR burden calculations is that those railroads are already doing those calculations on an annual basis under 49 CFR 172.820. While that is true, it is only true for those lines that are carrying the specific hazardous materials listed in that section (for example toxic inhalation hazard chemicals). Many of the same rail line segments will be used for highly hazardous flammable trains (HHFT), but there will undoubtedly be rail line segments that will be used by HHFT that are not used for shipping the other chemicals. So there will be an additional ICR burden for those new rail line segments.

Additionally, the hazards associated with TIH chemicals will be different than those associated with flammable trains. For instance there is no significant downwind hazard to be considered for burning Class 3 chemicals, but such hazards must be evaluated for TIH chemical releases. This means that the weighing of the various factors to be considered in analyzing for the safest most secure route will be different for different commodities being carried. This means that the route and alternate route analysis will have to be redone for the HHFT rail line segments currently being reported by Class I railroads.

Finally the requirement to evaluate the emergency response capability along the various routes and alternatives will be calculated differently for Class 3 chemicals than for TIH chemicals. A local fire department may, for instance, have foam firefighting equipment appropriate for crude oil, but not have equipment for dealing with a TIH release; or vice versa. Again, the Class I railroads are going to have to do a different sort of analysis for HHFT rail lines.

In short, it looks like PHMSA seriously under estimated the burden this new regulation will have on the affected industry by incorrectly assuming that Class I railroads would have no new burden associated with these new requirements for HHFT. Either that or they are going to give Class I railroad a pass on the route analysis requirements based upon their already having done them under §172.820.

OMB Publishes Flammable Train ICR Data

Yesterday the OMB’s Office of Information and Regulatory Affairs concluded their actions [added link - 5-14-15 0915 CDT] in support of the information collection request (ICR) requirements for the Pipeline and Hazardous Material Safety Administration’s (PHMSA) final rule on Flammable Hazardous Materials by Rail Transportation. This is an integral part of OIRA’s final review of that regulation that is still not expected to be published until sometime next month.

The interesting thing in this notification is the data provided [.XLSX download] by PHMSA on the burden this regulation will place on the railroad associated with the reporting requirements of the regulation. The bottom line first year burden data is shown below.

∙ Respondents – 1,612

∙ Responses – 1,801

∙ Hours – 73,622

∙ Cost - $5,393,387

The largest portion of this cost ($4,570,936) will be borne directly by the providers of the mined gases and liquids (including crude oil) to be shipped via rail in the testing and classification reporting process. The remainder of the information collection and reporting cost will be borne by the Class II and Class III railroads in their routing analysis and reporting activities. According to the documentation [.DOCX Download] provided by PHMSA there will be no requirement for such analysis by the Class I railroads.

I would like to think that this is merely an oversight on the part of PHMSA in their ICR documentation. In explaining the routing analysis requirement PHMSA explains (Para 2):

PHMSA is proposing to add § 174.310(b)(1) requiring rail operators to conduct a routing and safety security analysis for HHFTs [highly hazards flammable trains] related to crude oil transportation. Specifically, PHMSA is proposing to require rail carriers compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments.  This data will in turn be used by State and/or regional Fusion Centers that have been established to coordinate with state, local, and tribal officials on security issues and which are located within the area encompassed by the rail carrier's rail system.

There is nothing there that would seem to exempt Class I railroads from this route analysis requirement. Later in paragraph 12 (burden calculation), however, PHMSA specifically states that:

In performing this analysis the rail carrier must consult with state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets, countermeasures already in place, and the community emergency response capability along, or in proximity to, the route(s) utilized.  This analysis will be conducted by both Class II and Class III railroads.

Either PHMSA is understating the ICR burden or it does not intend for Class I railroads (who are responsible for the bulk of the miles of crude oil transportation) to conduct the routing analysis that will be required by this new regulation. I hope (and expect) that it is the former.

S 2784 Introduced – Rail Safety

As I noted last week Sen. Blumenthal (D,CT) introduced S 2784, the Rail Safety Improvement Act of 2014. The bill would provide authorization for funding various DOT rail safety programs under 49 USC 20117 and adds some new safety requirements; including specific requirements for highly hazardous flammable trains (HHFT).

HHFT Rulemakings

In many ways Section 6 of this bill is a specific authorization for the current HHFT,  HHFT emergency response and train securement rulemakings that are being undertaken by the Pipeline and Hazardous Material Safety Administration (PHMSA) and the Federal Railroad Administration (FRA). There are some significant differences that could affect those rulemaking processes.

One significant affect could be on the timing of those rules. This bill would provide a very short time requirement (180 days for the emergency response {§6(e)(1)} and train securement {§13}) rulemakings and  for DOT to put these rules into place. There is no specific requirement for a deadline on the HHFT regulation process, but the HHFT requirements would become law upon this bill being signed by the President.

DOT could, of course, ignore these time limits as they have done for so many other congressional requirements or they could short-cut the publication and comment provisions of the rulemaking process and institute the provisions as a directed rulemaking. That response would almost certainly be challenged in court.

HHFT Requirements

This bill has some differences from the current PHMSA proposed rule. First it would codify the requirements in 49 USC 5111. It would expand the route notification requirements to include county officials {§5111(b)(1)}, require submission of copies of those notifications to DOT{§5111(b)(2)}, and specifically place those submissions to DOT under the public disclosure requirements of the Freedom of Information Act (5 USC 552). Interestingly, the DOT notification requirements do not apply to the requirement to provide route update information to State and County emergency response officials. It also provides for civil fines of up to $175,000 per day for failure to comply with these requirements {5111(b)(5)},

PTC for Crude Trains

Section 6(d) would amend 49 USC 20157(a)(1) by adding the requirement that any mainline over which “20 or more tank cars loaded with petroleum crude oil” are transported would have to be covered by a positive train control system (PTC). There is no provision changing the time by which that PTC system for these lines would have to be operational so presumably the December 21^st, 2015 deadline would still apply. The wording does not seem to require that the 20 cars be in a single train so that further complicates the interpretation of this provision.

Moving Forward

This bill was introduced way too late in this session to be actually considered and passed. While there is a certain amount of political pressure on this issue, I do not believe that it is enough to overcome the political inertia of an election season and a busy lame duck session. This bill or another version of it will almost certainly be re-introduced in the next session.

PHMSA Oil Spill Response Plan ANPRM Comments – 09-13-14

This is the first post in a series that looks at the public comments provided to DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) on their advanced notice of proposed rulemaking (ANPRM) for possible regulations governing oil spill response planning for High-Hazardous Flammable Trains. Fifty comments have been received as of last Friday and 20 comments are posted to the current docket.

Most of the comments (18 of the 20 posted) received to date are from private individuals that feel that they might be impacted by a spill from one of these crude oil trains. Thirteen of those are part of an organized letter writing campaign organized by RiverKeeper.org. I have never understood why environmental organizations think that an organized letter writing campaign will sway regulators in their decisions about how or if regulations should be written. I suspect that these campaigns are more about keeping their members feeling like they are involved and having an effect rather than a real effort to affect the rulemaking process.

There is a very interesting ‘Anonymous’ comment that was obviously written by someone familiar with oil spill response planning. That comment coupled with one from a business group and another from a spill response consultant organization provide the most useful information in the comments to date. All three of these comments look at the rulemaking as an extension of current oil spill response regulations; they have various ideas about how the railroad situation parallels or differs from fixed installation, pipeline or maritime spill response situations. All are worth reading.

The first comment posted to this docket makes a point that PHMSA has yet to address and none of the commenter mentioned above look at, flaming oil. The comment from an individual starts with a very succinct statement of the problem: “Develop a plan for flaming oil running downhill or under other tank cars.” If the PHMSA regulations don’t at least make an effort to deal with that problem they will be incapable of preventing disasters like we saw in Canada last year.