HR 2223 Introduced – Rail Spill Fund

Last month Rep. DeFazio (D,OR) introduced HR 2223, the Community Protection and Preparedness Act of 2017. The bill would establish a Rail Account within the Oil Spill Liability Trust Fund (OSLTF). The bill is similar to HR 5786 that was introduced in the 114^th Congress, but significant changes were made to increase the chances of this bill being considered.

Changes

Section 3 of the earlier bill that added new requirements for rail track inspections has been removed from this version. In its place, DeFazio added §5 that would require DOT to report to Congress on rail track inspections. That report would include an assessment of current {§5(1)}:

• Railroad track inspections, including the frequency of inspections;

• Training provided to railroad track inspectors and related railroad personnel;

• Railroad compliance with Federal track safety regulations; and

• Federal oversight of railroads with respect to track safety

Another change is the addition of a new §3 that would require the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) to complete their rulemaking on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”.

Moving Forward

DeFazio is the Ranking Member of the House Transportation and Infrastructure Committee and thus should be in position to move this bill forward to consideration by that Committee. The earlier bill drew too much opposition from railroads due to the costly track inspection requirements for the Committee to approve the bill. This was almost certainly the reason that the bill was not considered in the last session.

The removal of those track inspection requirements should remove the opposition of the railroads. In fact, there could be a quiet endorsement of this bill by the railroads as it would increase the costs to shippers of flammable liquids thus potentially reducing some of those shipments. This would help reduce railroad liability for accidents involving these hazardous materials. The presence of the Rail Fund in the OSLTF to help fund response training would also reduce calls for additional railroad funding of such training.

The main thing holding up consideration of this bill remains the opposition of the flammable liquid shippers to having to pay for the Rail Fund. That opposition is not as organized as the railroads were in their earlier opposition. That combined with the general Republican opposition to federal regulations may be enough to derail this bill. If the bill is considered by the Committee, the chances of it passing in the House would be much higher than I currently expect it to be.

Commentary

From a hazmat transportation safety perspective, the main problem with the OSLTF remains the limitation of consideration of spill response as a water contamination issue. Continuing to ignore the fire and explosion hazard related to these spills means that this fund will have little or no effect on the planning for, and spending on, responding to the biggest hazard for flammable liquid accidents in or near urban areas.

From a legal point of view, the easiest way to do this would be to either create a new hazardous chemical spill liability fund that would be completely separate from the current OSLTF. That way the new fund could be more appropriately targeted in the scope of emergency response planning and support. From a political point of view that is not going to happen absent a really huge hazmat transportation incident.

This bill tries to take the more politically expedient approach of adding a more generalized hazmat response under authority of 49 USC 5116 for a subset of the OSLTF established as the Rail Fund. The problem with this is that the folks currently administering the OSLTF are experienced and focused on the issues of protecting water from oil spills, not responding to fires and explosions. This involves two completely different sets of planning and response activities.

Having said that, I think that this is probably the most expedient method of dealing with an expensive and complex issue. It is not going to be really effective, but it will be more effective than what we currently have. We have to remember that politics is, at its heart, the art of the possible.

S 3187 Introduced – Rail Hazmat Safety

Last month Sen. Merkley (D,OR) introduced S 3187, the Mandate Oil Spill Investigations and Emergency Rules (MOSIER) Act of 2016. The naming of the bill makes it clear that it was introduced in response to the crude oil train derailment near Mosier, OR in June of this year. The bill addresses rail hazmat investigations, emergency orders and a crude oil volatility standard.

NTSB and Hazmat Spills

Section 2 of the bill amends the NTSB authorization language in 49 USC 1118. It increases the funding authorization of the bill from the latest value (FY 2008, $92,625,000) to $108 million per year for 2018 thru 2020. Of that amount $2 million would specifically be set aside for “the costs associated with carrying out railroad accident investigations and investigations of significant railroad incident” {new §1118(a)(3)}.

Section 3 of the bill would amend the NTSB’s authorization to conduct transportation accident investigations under 49 USC 1131 to specifically require investigations of railroad accidents that involve “a significant release of hazardous materials into the environment within a close proximity to communities, personal property, or critical landscapes” {revised §1131(a)(1)(c)}.

Emergency Orders

Section 4 of the bill would expand the explicit authority of the Secretary of Transportation to issue emergency orders by adding the words “or reoccurring situation” to the description of when the Secretary may issue an emergency order under 49 USC 20104.

Crude Oil Volatility

Section 5 of the bill would require the Secretary to establish, within 90 days of the passage of the bill, “a national standard for the maximum volatility of crude oil to be permitted to be shipped by rail based on the safest practicable standard” {new §20154, Note: that section number is already taken, it should have been §20168}.

Moving Forward

Neither Merkley nor his co-sponsor, Sen. Wyden (D,OR), are members of the Senate Commerce, Science and Transportation Committee, the committee to which the bill was assigned for consideration. This means that the bill is unlikely to be considered in that Committee, especially considering how late we are in the session.

Even if the bill were to make it out of committee it would not make it to the floor of the Senate for consideration due to the expected opposition to the imposition of a volatility standard.

Commentary

This bill is certainly more of a political ploy to gain points with (and monetary support from) the voters back home in Oregon than a real attempt to have an effect on the safe transportation of crude oil. The naming of the bill makes that perfectly clear.

The NTSB authorization language is another dead giveaway that neither Senator had any intention of this bill being considered in Committee. Federal agency authorization bills are always written by senior members of the committee with oversight authority. Attempting to usurp that power and prestige is a sure way to get a bill buried and forgotten.

PHMSA Publishes HHFT Oil Spill Response Rule

Last week the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register  (81 FR 50067-50129) concerning oil spill response plans and information sharing for high-hazard flammable trains. The advance notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014.

This rulemaking addresses three general areas:

• Oil Spill Response Plans;

• Information Sharing; and

• Initial Boiling Point Test

Oil Spill Response Plans

The current hazardous materials regulations (49 CFR 130) currently requires two types of oil spill response plans (OSRP). The basic OSRP {§130.31(a)} covers any oil shipment in containers of 3,500 gallons or greater. The comprehensive OSRP {§130.31(b)} covers any oil shipment in containers of 42,000 gallons or greater. Since railcars used for transporting crude oil are generally 30,000 gallons, railroads are currently only required to prepare basic OSRPs.

This NPRM proposes to generally re-write Part 130; moving (and expanding) the comprehensive OSRP requirements to a new Subpart C. The changes to the comprehensive OSRP requirements would include:

• Expanding the applicability for comprehensive oil spill response plans to include “Any railroad which transports a single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist” {new §130.101(b)};

• Establishing a general requirement for the overall development of the comprehensive response plan and requires the plan uses the National Incident Management System (NIMS) and Incident Command System (ICS) {new §130.102(a)};

• Establishing a general requirement for the plan format including the development a core plan and the establishment of geographic response zones and accompanying response zone appendixes {new §130.102(b)};

• Establishing requirements for the notification procedures and contact information that a railroad must include in a comprehensive oil spill response plan {new §130.105};

• Establishing requirements for equipment testing and drill procedures consistent with PREP requirements for comprehensive oil spill response plans {new §130.108}; and

• Establishing requirements and procedures to submit comprehensive oil spill response plans for approval to FRA {new §130.111};

Nothing in this rule changes the basic OSRP requirement that the plan is targeted at oil spill containment and recovery. In fact, a new definition is added in §130.5 for ‘Response Activities’ that specifically limits that definition to the “the containment and removal of oil from navigable waters and adjoining shorelines”.

Information Sharing

While information sharing was not included in the ANPRM for this rulemaking, Congress did recently specifically direct DOT to “require each Class I railroad to provide advanced

notification and information on high-hazard flammable trains to each State emergency response commission, consistent with the notification content requirements in Emergency Order Docket No. DOT–OST–2014–0067 [.PDF Download link added]” {§7302(a)(3) of the FAST Act (PL HR 114-94)}.

This NPRM establishes information sharing requirements that expands the notification requirements of the Emergency Order to include all Highly Hazardous Flammable Trains (HHFT) as defined in §171.8. The NPRM would require monthly reports to State and Tribal Emergency Response Commissions (SERC and TERC) that would include:

• A reasonable estimate of the number of HHFTs that the railroad expects to operate each week, through each county within the state or through each tribal jurisdiction;

• The routes over which the HHFTs will operate;

• A description of the hazardous material being transported and all applicable emergency response information required by subparts C [Shipping Papers] and G [Emergency Response Information] of part 172; at least one point of contact at the railroad (including name, title, phone number and address) with knowledge of the railroad's transportation of affected trains (referred to as the “HHFT point of contact”); and

• If a route is subject to the comprehensive spill plan requirements, the notification must include a description of the response zones (including counties and states) and contact information for the qualified individual and alternate, as specified under § 130.104(a).

SERCs and TERCs would be required to share the supplied information with “appropriate local authorities, upon request” {new §174.312(a)}. Further dissemination of the information may be restricted upon request by the submitting railroad if the railroad determines that the information may be “security sensitive or proprietary and exempt from public disclosure” {new §174.312(a)(2)(iii)}. The language does not make the information Sensitive Security Information under §1520.5 so the SERC and TERC would be able to make their own decisions as to what State or local regulations applied to the protection of the information.

Initial Boiling Point Test

One of the concerns about shipping crude oil from the Bakken region is that the current standard for classifying the crude oil for shipment may not appropriately address the volatility of the crude oil. Suggestions have been made to include a vapor pressure measurement for use in the classification of crude oil and I have discussed the problems with that sort of measurement.

The current testing process outlined in §173.120 and §173.121 almost certainly allow significant amounts of the light-ends (low molecular weight hydrocarbons). Depending on the concentration of these light-ends, these current test methods could significantly under-state the flammability of the material.

Recognizing this problem, PHMSA and the American Petroleum Institute (API) came up with a best practice (ANSI/API RP 3000) for measuring the flammability of crude oil that includes using ASTM D7900 for determining initial boiling point. This test method, however, is not one of the approved methods for classifying flammable liquids in §173.121. This NPRM would add ASTM D7900 as an acceptable alternative for determining initial boiling point to be used in determining packing groups for Class 3 (flammable liquids) hazardous material.

Public Comments

PHMSA is soliciting public comments on this rule making. Written comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2014-0105). Comments should be submitted by 9-27-16.

Commentary

My major concern with the OSRP section of the NPRM is that it fails to address what is the most publicly acknowledged problem with crude oil transportation by unit trains; the potential for catastrophic fires and explosions resulting from a rail accident and the inability of most local first response agencies to properly deal with this type of catastrophic emergency. Unfortunately, the current OSRP rules are based upon the Clean Water Act provisions that are intended to protect waterways (and drinking water sources) from contamination with crude oil. Until Congress specifically addresses the flammability problems associated with a variety of energy chemicals shipped by unit trains, neither PHMSA, FRA, nor the Coast Guard will be able to address these very real probable consequences of oil spills.

PHMSA took a pass on addressing the issue of confidentiality of HHFT train schedule information by allowing the railroads to claim that the information was either sensitive from a security perspective or confidential business information and then allowing each SERC or TERC to evaluate those claims based upon State and local laws. Again, PHMSA has not really been authorized to make a determination that the information falls within the Sensitive Security Information rules; only TSA is authorized to make that determination. Again this is going to take Congressional action to resolve this problem.

The issue of crude oil testing is a more complex problem. The addition of ASTM D7900 to the list of allowable test methods provides crude oil shippers with a more accurate method of classifying crude oil based upon the initial boiling point. PHMSA has long maintained that shippers are responsible for determining which of the allowed test methods is the most appropriate for classifying the material which they ship. The use of this test should result in upgrading some shipments from Packing Groups II and III and that will result in some increase in safety of those shipments.

What is missing, however, is a more complete discussion of the role of volatility in the fires and explosions seen in a relatively small number of crude oil derailments. Measurement of volatility, alone will not increase safety unless some additional safety measures are required for flammable liquids with higher vapor pressures. For crude oil, that could include a requirement to remove light-ends from the material to reduce vapor pressure before it is offered for shipment.

To be an effective safety tool, any vapor pressure testing is going to have to specifically address protection of samples from vapor loss (sealed sampling devices and sample containers) as well as measuring vapor pressure at multiple temperatures if there is any hope of using the test as an effective tool for predicting the safety consequences of the fluid vapor pressure.

The current NPRM provides a good first step at addressing the transportation safety classification of crude oil. Hopefully PHMSA will continue to look at possible additional changes to test methodology to more completely identify the safety issues associated with crude oil transportation.

FAST Act Rule Approved by OMB

On Friday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the DOT’s Pipeline and Hazardous Material Safety Administration’s (PHMSA) direct final rule implementing the requirements of the Fixing America’s Surface Transportation (FAST) Act of 2015 (HR 22 – PL 114-94). OIRA acted fairly quickly on this rulemaking, given that it was submitted by PHMSA just back in June.

This rule implements Congressionally mandated changes to the hazardous material regulations related to railcars used to ship flammable materials. This includes changes to the DOT 111 phase-out schedule, and changes to the DOT 117 railcar standard. Since DOT was given no leeway on these changes by Congress, the rule did not require the normal publish and comment process; going instead directly to the issuing of the final rule.

This rule will almost certainly be published in the Federal Register this week.

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.

OMB Approves FRA Risk Reduction Rule

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the FRA’s notice of proposed rulemaking (NPRM) for the Railroad Risk Reduction Program.

As I noted in my post about the advance notice of proposed rulemaking (ANPRM) published in December of 2010 the amount of hazardous materials that a railroad carries (and particularly carries through major urban areas) will have a significant impact on the requirements of this risk reduction program. When I wrote that post I was mainly concerned with the transit of toxic inhalation hazard (TIH) chemicals and the emergency response requirements for those chemicals that should be included in this rule.

Since that time we have had a number of accidents with crude oil unit trains that have resulted in very large fires with multiple explosions. I would suspect that the FRA has included specific requirements for those trains in this NPRM.

We should see this NPRM published in the Federal Register in the coming week.

FRA Requests Emergency Safety ICR

Today the Federal Railroad Administration published an emergency information collection request (ICR) in the Federal Register (78 FR 53818-53819) supporting their recent Emergency Order 28. The FRA is asking for OMB approval of the ICR by September 1^st for 180 days’ worth of information collections.

The ICR would cover the requirements from the Emergency Order to:

Develop a plan to identify specific locations and circumstances when HAZMAT trains or vehicles may be left unattended;

Communicate, record, and verify securement information about HAZMAT trains that are left unattended;

Review and revise procedures for determining the number of hand brakes that must be set on HAZMAT trains that are left unattended;

Implement procedures for discussing process for security HAZMAT trains that are to be left unattended; and

Establish procedures to ensure job briefings of all employees that will conduct train securement of HAZMAT trains to be left unattended.

These requirements were already set in place by Emergency Order #28, this ICR would provide administrative approval for FRA to require the developing and maintaining of the documentation demonstrating compliance with the requirements.

The FRA estimates that the 655 railroad covered by this order in the United States will have a total of over 23 million individual responses to these requirements over the next year for a total of over 1.9 million hours of regulatory burden. No estimate is made of how much this regulatory burden will cost the railroad industry. Neither does this emergency ICR address the additional burden associated with the joint safety advisory published on the same day and topic by the FRA and PHMSA.

PHMSA Resumption of Transportation NPRM

The Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in today’s Federal Register (78 FR 30258-30266) implementing Congressional requirements for the agency’s enhanced enforcement procedures resumption of transportation rules. These requirements were set forth in §33009 of MAP 21 (PL 112-141).

The proposed regulation would:

• Clarify the Department's position with respect to perishable hazardous material, by amending the opening of packages provision of the Department's hazardous materials procedural regulations for the opening of packages, emergency orders, and emergency recalls;

• Recognizes the special characteristics and handling requirements of perishable hazardous material by clarifying that an agent will stop or open a package containing a perishable hazardous material only after the agent has utilized appropriate alternatives;

• Codify the statutory notification requirement in HMTSIA by incorporating into the regulations the Department's current notification procedures from the operations manual that was developed in conjunction with the PHM-7 final rule; and

• Add a new provision to address appropriate equipment for inspectors.

Public comments on this NPRM are being solicited by PHMSA. Public comments may be filed via the Federal eRulemaking Portal {www.Regulations.gov; Docket #PHMSA-2012-0259 (HM-258B)}. Comments must be received by July 22^nd, 2013.

BTW: The MAP-21 requirements include a mandate for the Secretary to have these regulations finalized by July 6^th, 2013; an unrealistic requirement if there ever was one and one that will obviously not be met.

HR 3410 Introduced

Last week on July 30th Representative Melissa Bean (D,IL) introduced HR 3410, The Taking Responsible Action for Community Safety (TRACS) Act. According to a press release from Congresswoman Bean’s office the act would require the “Surface Transportation Board to consider the effects of rail expansion on local communities and taxpayers as part of its core mission”. The bill would expand the requirements of 49 USC 11324 to include STB hearings on ‘consolidation, merger and acquisition of control’ issues that involved at least one Class I railroad instead of the current 2 Class I railroads. It would also expand the items that would have to be taken into account when approving such actions to a variety of issues affecting local communities. One of those issues would be of particular interest to the chemical security community; the issue of “hazardous materials transportation safety” {§11324(b)(6)}. This same bill was introduced last year by Chairman (House Transportation Committee) Oberstar (coincidentally on July 31st) as HR 6707. It looks like Congresswoman Bean (who was a co-sponsor last year) copied and pasted the entire contents of HR 6707 into the submission for this bill. You can tell by the final section of the bill which would make the bill, if passed, retroactive to any action not completed by the STB on August 1, 2008. One would assume that should read 08-01-09 or later. The bill was reported favorably by committee last year, but was not agreed to by the House when it was brought up under suspension of the rules on September 27th. The recorded vote (243-175) would have been sufficient to pass the bill if it had been brought up in regular order, but that did not happen because of the election shortened session. If the bill makes it to the floor this year it would seem likely to pass if not considered under suspension of the rules; which requires 2/3rd vote to pass.