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.

PHMSA Publishes HHFT Oil Spill Response ANPRM

Friday, in addition to the HHFT NPRM described earlier, DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published an advance notice of proposed rulemaking (ANPRM) in the Federal Register (79 FR 45079-45083) concerning oil spill response plans (OSRP) for railroads.

Background Information

The ANPRM discusses the history of the requirement for OSRP’s for installations and shippers based upon the requirements of the Federal Water Pollution Control Act. Those requirements are outlined in 33 USC 1321(j). The transportation related requirements are implemented by 49 CFR 130.31. Crude oil unit trains of High-Hazardous Flammable Trains (HHFT) carrying crude oil, are currently required to have basic OSRP’s in place based upon the presence of oil in a single container with a capacity of 3,500 gallons. The requirements for a comprehensive OSRP do not apply since railcars do not generally have a capacity of the 42,000 gallons that trigger that requirement {§130.31(b)}. The ANPRM provides a table which describes the different requirements of the OSRP and the Comprehensive OSRP.

Information Requested

As is the case with all ANPRM’s, PHMSA is not yet proposing specific changes to the current regulations. What they are doing is laying out a number of potential options and requesting comments from the regulated and affected communities about those options. PHMSA is specifically looking for information in the following areas:

If PHMSA is to require the submission of the more comprehensive OSRP, they will need to change the current threshold from the current 42,000 gallons. Possible options include:

• The 1 million gallons currently used to define a crude oil train;

• The 20 railcars being proposed to define an HHFT;

• Changing the 42,000 gallon limit to a per train instead of a per container limit; or

• Some other alternative.

There are a series of other questions that deal with costs and how a comprehensive OSRP might be applied to rail transportation.

Emergency Response Missing

It must be remembered that the OSRP’s are a requirement of pollution prevention legislation. This ANPRM does not really address emergency response planning, at least as in that typically applies to response to fire and explosions. The two crude oil train accidents that have caught the public attention were the Lac-Megantic, Canada and the Casselton, ND derailments with fires and explosions. The two wrecks where crude was discharged to waterways (Alabama and Virginia) received much less national attention.

It should be argued that the fighting of fires and prevention of explosions subsequent to a derailment spill is a contingency that should also be covered in the OSRP. Since fires from the initial derailment almost certainly contributed to the failure of containment of a number of railcars during both the Canadian and North Dakota accidents fire-fighting should be considered an integral part of spill containment.

ER Equipment and Training

While most local response agencies have ready access to equipment necessary to contain an oil spill (bulldozers to build dikes for instance) the same cannot be said for the specialized fire-fighting equipment necessary to fight crude oil and ethanol fires. A relatively simple and low cost method of making the appropriate equipment available at the site of the rail accident would be to require unit trains and HHFTs to carry at the rear of the train, a car containing the necessary foam and dispensing equipment necessary to fight these specialized flammable liquid fires.

Training to use that equipment will be a bit more problematic, but efforts are being made to develop electronically exportable training programs that may provide the minimum training required. Hands-on-training is a more complicated issue especially where funding is concerned. This ANPRM should also address the development of a training grant program for these types of fires.

Public Response

PHMSA is soliciting input from both the shipping industry, railroads and other affected communities on this ANPRM. Responses may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket #PHMSA-2014-0105). Comments should be submitted by September 30^th, 2014.