PHMSA Final Rule on HHFT – Shipper Requirements

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

PHMSA Publishes HHFT ICR Revision 60-day Notice

PHMSA Final Rule on HHFT – Speed Limits

In this post I will be looking at the new requirements that the offeror of crude oil has for the characterization of that material. Even though there are already requirements in the  hazardous material regulations to properly classify hazardous materials for shipment, PHMSA is adding a new section that specifically addresses additional measures that a shipper of crude oil must take.

Current Requirements

There is a lengthy discussion in the preamble concerning the current requirements for classifying hazardous materials. In general 49 CFR 173.22 requires the offeror to properly “class and describe a hazardous material in accordance with parts 172 and 173 of the HMR.” There is no specific mention of how often the testing has to be done to achieve that objective, just that the testing needs to have been done.

NPRM Proposal

In the NPRM PHMSA proposed adding a new §173.41 that would outline new testing requirements for mined gasses and liquids. The justification was that, while most hazardous materials shipped by rail were manufactured product with some level of consistency of characteristics, crude oil was taken from the earth and the specific characteristics varied not only by the location of extraction, but could vary by the time of year or extraction technique employed.

The NPRM proposal would have required the following areas to be addressed by the offeror:

∙ Frequency of sampling and testing;

∙ Sampling at various points along the supply chain

∙ Sampling methods;

∙ Testing methods;

∙ Statistical justification for sample frequencies;

∙ Duplicate samples for quality assurance purposes; and

∙ Criteria for modifying the sampling and testing program.

There is a lengthy discussion in the preamble about the large number (65,000+) public comments made about these crude oil characterization requirements and the PHMSA responses to those comments.

API RP 3000

One of the specific areas in that discussion that has an important bearing on the testing of crude oil is the new document from the American Petroleum Institute; API Recommended Practice 3000, Classifying and Loading of Crude Oil into Rail Tank Cars. This document obtained its final approval after the end of the comment period for the NPRM, so PHMSA was not able to include an intent to incorporate this standard by reference.

PHMSA did note in their preamble discussion that:

“The one area where the concerned public, environmental groups, and industry stakeholders agreed was that API RP 3000 should be adopted or permitted as a method of compliance with the proposed requirements.”

PHMSA does explain that:

“Furthermore, the boiling point test specified in the API RP 3000 does not align with the requirements currently authorized in the HMR. Shippers must continue to use the testing methods for classification of flammable liquids outlined in § 173.120 and flammable gases in § 173.115. However, API RP 3000 is otherwise consistent with the sampling program requirements in paragraph 173.41(a)(1)-(6) and may be used to satisfy these adopted sampling provisions.”

Finally, PHMSA notes in the final paragraph of the discussion of characterization that: “It should be noted that PHMSA may consider the adoption of the non-codified testing provisions of API RP 3000 in a future rulemaking.”

Changes in §173.41

In general the NPRM version of §173.41 pretty much made it into the final rule. There were some changes. First, of course, is that the term ‘mined gasses and liquids’ was changed to a slightly more restrictive ‘unrefined petroleum-based products’. The term ‘classification’ has also been removed with PHMSA clarifying the related requirement for the sampling and testing program to include a requirement to “identify properties relevant to the selection of packaging through testing or other appropriate means”.

PHMSA is also clarifying §173.41(a)(1) to specify that the program must account for “any appreciable variability of the material” with a list of recommended factors. They are also amending § 173.41(a)(3) to replace “as packaged” with “as offered” to clarify that the sampling may occur before the crude oil has been loaded into a transport vehicle.

Summary of §173.41

The following summary is taken directly from the final rule. Links have been added to the actual language of the appropriate portion of the added language:

“In this final rule, we are adding a new section 173.41 prescribing a sampling and testing program for unrefined petroleum-based products. This section specifies what must be included in a sampling and testing program in paragraph (a). Paragraph (b) of this section requires shippers to certify that unrefined petroleum-based products are offered in accordance with this subchapter, to include the requirements prescribed in paragraph (a). Paragraph (c) provides the requirements for documentation, retention, review and dissemination of the sampling and testing program. Finally, paragraph (d) of this section states that each person required to develop a sampling and testing program make the documentation available upon request to an authorized official of the Department of Transportation.”

PHMSA Publishes HHFT ICR Revision 60-day Notice

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a 60-day information collection request (ICR) revision notice in the Federal Register (80 FR 27844-27845) for the ICR recently approved supporting the high-hazardous flammable train final rule that was published last week.

Apparently in their ICR request for the HHFT final rule PHMSA failed to take into account the fact that in addition to an initial reporting requirement in the preamble for failure to meet the “January 1, 2017 deadline for retrofitting non-jacketed DOT-111 tank cars in PG I service” the preamble also provided authority for the Secretary to require additional follow-up reporting requirements.

PHMSA is estimating that the initial and follow-up reporting requirement may result in up to 50 additional responses at 30 minutes per response with an annual burden increase of 25 hours and $1,000.

PHMSA is soliciting public input on this ICR revision. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2012-0082). Comments should be submitted by July 13^th, 2015.

PHMSA Final Rule on HHFT – Route Selection

Today DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a finle rule in the Federal Register (80 FR 26643-26750) concerning Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains. This is the same final rule that was announced last Friday by Secretary Fox.

This will be the first in a series of blog posts on the details of the HHFT final rule (HM-251). Because of the crude oil train wreck this week in North Dakota and Sen Baldwin’s letter to Secretary Fox calling for an emergency order overriding some of the rail routing provisions of this rule I will start off this review with that topic.

Background

One of the main concerns that first responders and politicians have with crude oil trains is the possibility of a derailment with fires and explosions in an urban area like we saw two years ago in Lac Montaic, Quebec. All other things being equal, politicians and urban first responders would prefer to see the HHFT route around major metropolitan areas. Lacking that, first responders would like as much information about HHFT trains as possible, including where and when they would run through their area of operations, as well as the number, type and location of hazmat railcars in the train.

This is not the first time that this issue has come up. Concerns about the movement of toxic inhalation hazard (TIH) chemicals through urban areas have provoked similar concerns. Congress responded by attempting to get these shipments re-routed around High Threat Urban Areas (HTUA) through the requirements of §1551 of the Implementing Recommendations of the 9/11 Commission Act Of 2007. In April of 2008 PHMSA added §172.820 to 49 CFR adding rail routing requirements to the safety/security plan portion of the Hazardous Material Regulations.

In short that section required that railroads carrying minimum quantities of security sensitive materials (TIH chemicals, radioactive material and certain explosives) are required to conduct a rail route analysis for covered routes and alternatives to those routes. The analysis is supposed to look at 27 Rail Risk Analysis Factors and then use that analysis to “select the practicable route posing the least overall safety and security risk” {§172.820(e)}.

Adding HHFT Trains

This final rule adds §172.820(a)(4). It adds “A high-hazard flammable train (HHFT) as defined in § 171.8 of this subchapter” to this list of security sensitive shipments that require the application of the route analysis requirements of §172.820. It also establishes the requirement for the HHFT train route analysis to be completed by March 31^st, 2016 using shipping-route data for all of 2015 or the last six months of 2015 at the discretion of the railroad{§172.820(b)(1)}.

Information Sharing

Sen. Baldwin’s concern with this provision lies in §172.820(i)(2) that requires protecting information collected during the route analysis as sensitive security information (SSI); restricting the information to those with a need to know. Her concern is that railroads would use this provision to limit the sharing of information to just those agencies specifically designated to receive it and certainly refusing to share it with the general public.

There is more than a little justification for her concern. When DOT issued their emergency order on the Local Notification of High-Volume Rail Transport of Bakken Crude Oil, railroads tried to convince the State Emergency Response Committees that the information on the volumes of crude oil being shipped that the EO required to be supplied to the SERCs was sensitive security information and could not be publicly disseminated. Some SERCs went along with that, others did not. Neither PHMSA nor DOT supported the railroads claim of SSI classification.

Interestingly, the SSI provisions of §172.820 only apply to information developed for paragraphs (c), (d), (e) and (f); the route analysis data. It does not apply to the commodity data required to be developed under paragraph (b). That commodity data would include “the geographic location of the route and the total number of shipments by UN identification number for the materials specified in paragraph (a) of this section” {§172.820(b)(1)}. This commodity data is what the emergency response committee would like to see given that they are unlikely to get advance notice of shipments as some have requested.

The reference to information sharing requirements in Baldwin’s letter do not actually come from this rule; they are already part of the current §172.820. Paragraph (g) requires railroads to provide contact information for an individual “on routing issues involving the movement of materials covered by this section” to State and Local fusion centers specifically for security issues not emergency response. The same information is to be provided to “State, local, and tribal officials in jurisdictions that may be affected by a rail carrier’s routing decisions and who directly contact the railroad to discuss routing decisions”.

PHMSA addressed this issue in the preamble to this rule noting that the requirements described above as the “current notification procedure for what have historically been known as the most highly hazardous materials transported by rail”. They also included a lengthy discussion of their original proposal to add a new notification requirement under §174.310 similar to that included in the emergency order issued last May. In the end they decided that the existing notification requirements of §172.820 were the most appropriate way to go.

Re-routing Decisions

The route analysis data is clearly designated sensitive security information and is thus not publicly available, nor discoverable through the Freedom of Information Act process. That means that we have no way of determining if the original usage of the provisions of §172.820 have had any effect on the routing of sensitive security materials around cities.

Even if there were data available it would be difficult to find fault with any but the most egregious examples of poor route selection for safety and security. With 27 different factors to consider, no formula for weighting those factors and no formal analytical process to establish comparable levels of safety and security, one would be hard pressed to find a situation where a legitimate (if not necessarily consistent) analysis could not be conducted to approve any given route.

The good thing here is that the railroads already have their internal analysis procedure in place and have probably started to collect the data. The thing that will be different is the number of flammable trains and the lengths of the routes involved. There will be some number of new miles not previously analyzed so they will have to collect data about the nature of those routes, but that will be minor as compared to their earlier requirements to stand up the data collection and analysis systems.

OMB Approves HHFT Final Rule

This is kind of anti-climactic since the rule was formally announced by DOT on Friday, but the OMB’s Office of Information and Regulatory Affairs has reported that it has approved the rule. It was supposedly approved on Friday, but somehow I missed the announcement in my search of the OIRA site on Saturday and Monday. I must be getting old.

I have been asked why I haven’t started my normal review of an important rule like this. The reason is simple; I’m waiting for the rule to be officially published in the Federal Register. This is not out of any concern that the copy provided by the DOT on Friday is in any way wrong, but rather because the Federal Register publication would allow me to provide links in my discussion to specific sections of the text of the preamble. This allows my readers to see exactly what the DOT reasoning is for the things that I discuss.

There is still no word on when it will be published. I expect that it will be this week, but there have been excessive delays with other DOT rules.