EPA Sends Spill Response Planning NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received from the EPA a draft notice of proposed rulemaking (NPRM) for “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations”. The rule would fulfill the requirements of 33 USC 1321(j)(5)(A) to require facilities and vessels to submit for approval “a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance.”

A March 12^th, 2020, consent decree requires this NPRM to be published by March 12^th, 2022 and a final rule to be published by September 30^th, 2024.

HR 5762 Introduced – Rail Hazmat Safety

Last month Rep. Bonamici (D,OR) introduced HR 5762, the Hazardous Materials Rail Transportation Safety Improvement Act of 2016. The bill provides a number of measures designed to increase the safety of liquid hazardous material transportation by rail.

The bill includes four separate titles:

• Creation and Funding of Hazardous Liquids Rail Spill Liability Account;

• Preparedness;

• Data Collection; and

• Authorization of Appropriations

Hazardous Liquids Rail Spill Liability Account

Title I of the bill would amend 26 USC 9509 to create a Hazardous Liquids Rail Spill Liability Account within the Oil Spill Liability Trust Fund (OSLTF). The account would be used to fund Federal responses to oil and other liquid hazmat discharges resulting from accidents related to rail transportation of liquid hazardous materials. The account would also be used to fund various requirements of this bill.

Monies deposited in this account would come from deposits made to the OSLTF due to rail transportation incidents resulting from:

• Damages to natural resources which are required to be deposited in the Fund under 33 USC 2706(f);

• Amounts recovered by the Trust Fund under §2715; and

• Any penalty paid pursuant to 33 USC 1319(c) or §1321.

Additionally, §103 of the bill would add monies to the Account from fees established on the use of DOT 111 and CPC 1232 railcars for the transportation of hazardous flammable liquids. The fees would increase from an initial $175 per shipment in 2016 to a maximum of $1400 per shipment in 2018. The shipper would be required to pay these fees.

Preparedness

Title II of the bill address actions to be taken by the DOT to enhance potential responses to accidents related to the rail transportation of liquid hazardous materials. These actions include training of local first responders and implementation of a number of NTSB recommendations related to rail hazmat preparedness.

DOT would be required to add training standards for responding “to an accident or incident involving trains transporting at least 20 tank cars of flammable liquids or gases” {new §5115(b)(1)(B)} to the existing requirements of 49 USC 5115. Additionally, the DOT would be required to include planning and training for “to accidents and incidents involving trains transporting at least 20 tank cars of flammable liquids or gases” {new §5116(a)(1)(E)} to the allowable uses for grants under 49 USC 5116.

Section 204 of the bill would require DOT to implement the following National Transportation Safety Board (NTSB) recommendations:

• R–07–002, dated April 25, 2007, relating to real-time information regarding the identity and location of all hazardous materials on a train:

• R–14–014, dated August 22, 2014 (relating to railroads providing communities and States with current commodity flow data and assisting with development of emergency operation and response plans;

• R–14–018, dated August 22, 2014 (relating to ensuring that emergency response information carried by train crews is consistent with the Emergency Response Guidebook;

• R–14–075 and R–14–076, dated December 30, 2014 (relating to allowable limits for track conditions; and

• R–14–019, dated August 22, 2014 (relating to developing, implementing and periodically evaluating requirements for railroads that transport hazardous materials to conduct public education programs for communities along railroad hazardous materials routes.

Data Collection

Title III of the bill requires the Department of Transportation and the Department of Commerce (for the Census study) to conduct four studies, each with a mandated report to Congress. Those studies involve:

• National flammable rail fire preparedness survey (§301);

• Hazardous materials railcar census (§302);

• Energy train data collection (§303); and

• Train length study.

Authorization

Title IV of the bill provides authorization for spending to support some of the requirements of this bill. The authorizations include:

• High hazard rail shipments preparedness and training grants - $15 million per year for 2016, 2017, and 2018 {§401(a)};

• Track relocation and railroad inspection safety grants - $25 million per year for 2016, 2017, 2018, and 2019 {§401(b)};

• Data collection funding - $5 million for each of the three non-census studies mentioned above {§401(c)}; and

• Federal spill response funding under 42 USC 9604 (CERCLA) for flammable liquids and gasses rail-accident related spills - $100 million {§401(d)};

Moving Forward

Bonamici is not a member of any of the four committees to which this bill was referred for consideration. This means that it is unlikely that any of these committees will consider the bill. If the bill were to make it out of committee to be considered by the whole House, the bill would almost certainly be opposed by most of the Republican (and some Democratic) members of the House because of the additional spending authorized by the bill and the fees being required for the continued use of DOT 111 and CPC 1232 railcars for flammable liquid transport.

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.