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.

OMB Receives PHMSA Rail Oil Spill Response ANPRM

Yesterday OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received an advance notice of proposed rulemaking from DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) for revisions to requirements for oil spill prevention and response plans for rail transport.

This proposed rulemaking was not included in the latest Unified Agenda published by the Administration so there is no official record of what the proposed rulemaking would address. It would seem to me that a primary focus would be the ending of the current de facto exemption from oil spill and response planning requirements that railroads and crude oil shippers have based upon the amount of oil in a single railcar.

There are a couple of approaches that could be taken. The most sweeping would be to lower the current 42,000-gal minimum requirement {49 CFR 130.31(b)} for a container of oil that would require the preparation and submission of an oil spill prevention and response plan in accordance with §130.31. Or it could establish a requirement establishing minimum number of railcars in a single train that would trigger the requirement. The first would put more of the burden on the shipper for plan preparation and the second would place more of that burden on the railroads.

It will be interesting to see how long this proposed rulemaking remains under review at OIRA.