OMB Approves PHMSA ICR Revision for Transportation of Hazmat by Rail

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the revisions of an information collection request (ICR) from the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) on Rail Carrier and Tank Car Tanks Requirements, Rail Tank Car Tanks - Transportation of Hazardous Materials by Rail. This revision supported the new requirements imposed by PHMSA’s final rule (removed from paywall) on “Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information”.

The table below shows the revised burden estimate.

Burden Revision	Existing	Revised
Responses	21,653	155,377
Time Burden (hrs)	4,472	18,556

According to yesterday’s announcement, this increase in burden is due to the final rule creating 6 additional information collections for:

Requiring railroads to provide expanded hazardous material train consist information that includes the origin and destination of hazardous materials on a train and the specific identification of hazardous material location in rail cars,

Requiring railroads to provide advance notice to state-authorized local responders when an accident or incident involving hazardous material occurs,

Creation and retention of test records related to the emergency system notification test, and

Creation and retention of the Class III alternative emergency response information plan. 

Safety Railcar

From time to time I receive interesting emails from readers of this blog. Yesterday it was one from a designer of a new ‘Safety Railcar’ that caught my attention. The email was brief; “Please see my patent pending idea.” Attached was a .PDF copy of the Patent Application Document from the US Patent Office.

The Problem

Now I have mentioned a couple of times on this blog that one of the big problems with railcar derailment fires is getting the right fire-fighting equipment to the scene in a timely manner. For many burning liquids the use of water is probably going to be contraindicated, especially with fluids like crude oil and various fuels. Various fire-fighting foams have been developed and successfully used, but most small community fire companies do not have the equipment to use foam, nor should they be expected to stock the various types of foams that would be necessary to fight fires from the variety of flammable liquids transported by rail.

I have suggested that trains with large numbers of crude oil cars {now formally called Highly Hazardous Flammable Trains (HHFT) by FRA} should carry a train car containing the specific foam necessary to fight crude oil fires. The local fire departments would still have to have the foam equipment, but they would not need to stockpile the foam making material.

The Safety Railcar

Now Robert E. Glen has done me one better. He has designed a railcar that would contain not only the foam making material but the equipment to mix and dispense the foam as well. See the basic diagram of the car below.

Safety Rail Car Design

I am not going to go into any great detail on the design of the car. Robert has done that in patent document with a very detailed description of the components and their employment in a derailment fire. In brief, his design purports to provide for both automated fire-fighting based upon data obtained from sensors on the car and for traditional firefighters unrolling hoses from the car to fight a fire. The document suggests that the Safety Railcar would be deployed every 15 to 20 cars in a unit train, ensuring that in the event of a major derailment, there would be at least one Safety Railcar near the scene of the resulting derailment fire to provide at least initial fire-fighting response.

Commentary

While I have done some untrained volunteer grass-fire fire-fighting and even helped haul 2” fire hoses (well away from the nozzle) on occasion, I am not a fire fighter, nor am I a railway design engineer. Having said all of that, this looks like an interesting concept that might be worth exploring.

Because of the expense of building railcars, I suspect that Robert’s work on this has been limited to paper design work. I really doubt that he has a working model available for testing. What would be helpful, I suspect is for some people with experience in the field taking a look at this proposal and seeing what holes can be poked in it. Robert has posted this information to the NFPA.org site for comments; that may be a more practical place for the technical discussion to take place rather than on this blog (though I would love to see reader comments).

Now on the practical side: if this is a workable idea, it will be a long road to get something like this into production and rolling down the rails. Railroads are not going to be big supporters, it would be like admitting that they have responsibility for preparing for accidents. Shippers are not going to be buying these cars because they will not produce any revenue. It is going to be either the government or insurance companies that demand that a service like this is provided.

Fortunately for the public (and unfortunately for Robert’s idea) there has been a significant reduction in the number and size of the crude-oil-train fires that we saw too frequently a couple of years ago. While HHFT restrictions and safety work by the railroads have contributed to the decline, the root cause is almost certainly the sharp reduction in the number of crude oil and ethanol shipments over the last two years for economic reasons.

There will be more crude-oil train derailments and the chances are still there for another Lac-Megantic type catastrophe. It looks like something like Robert’s Safety Train may be one of the tools that could prevent a derailment from turning into a catastrophe.

PHMSA Publishes Direct FAST Act Rule

The DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a direct final rule in the Federal Register (81 FR 53935-53957) implementing the Congressionally directed changes to the rules concerning the transportation of flammable liquids by rail. Congress mandated these changes in Title VII of the Fixing America’s Surface Transportation (FAST) Act of 2015 (HR 22 – PL 114-94).

NOTE: This rule was approved by OMB back on July 29^th. The two-week delay in publishing this rule indicates that the Administration is apparently doing an extra level of political approval of rule publication in trying to avoid charges of midnight rulemaking in the last six months of its tenure.

This rule implements the following Congressional mandates:

• Changes to the DOT 111 Retrofit Schedule (FAST Act §7304);

• DOT 117 and DOT 117R Thermal Protection Blanket (FAST Act §7305); and

• DOT 117R Top Fittings Protection (FAST Act §7306);

The main change in this rule is that it implements the FAST Act requirement that mandated a commodity-specific phase-out of all DOT-111 tank cars used to transport Class 3 flammable liquids. The rule implements the mandate that the phase-out proceeds regardless of train composition and requires that all tank cars used to transport Class 3 flammable liquids meet the DOT-117, DOT-117P, or DOT-117R requirements. The new phase-out dates are based upon commodities (crude oil, ethanol, and by packing group by all other flammable liquids). The new phase-out dates for crude oil and ethanol generally reflect the original phase out dates for Packing Group I and Packing Group II respectively.

The effective date for this rule is August 15^th, 2016.

Bills Introduced – 07-13-16

With just one day left before the House and Senate start their 7-week summer recess we are starting to see a sharp increase in the number of bills introduced with 89 bills introduced yesterday. Of those bills only three may be of specific interest to readers of this blog:

HR 5762 To improve the safety of hazardous materials rail transportation, and for other purposes. Rep. Bonamici, Suzanne [D-OR-1]

S 3186 A bill to amend the Homeland Security Act of 2002 to provide for active shooter and mass casualty incident response assistance, and for other purposes. Sen. Carper, Thomas R. [D-DE]

S 3187 A bill to increase the authorization of the National Transportation Safety Board through fiscal year 2020, to require the NTSB to investigate major oil and other hazardous materials derailments, to expand the Secretary of Transportation's emergency order authority, and to require the Secretary of Transportation to establish a volatility standard for crude oil transported by rail. Sen. Merkley, Jeff [D-OR]

It is tempting to call the two railroad hazmat bills election year posturing, but that would not be the case for Merkley who is not facing re-election for another four years. It will be interesting to see if these are actually companion bills (identical bills introduced in both houses of Congress).

It will be interesting to see if Carper’s bill addresses the unique issues of response to active shooter incidents at facilities where hazardous chemicals are stored.

S 1175 Introduced – Rail Hazmat Safety

Just about three weeks ago Sen Wyden (D,OR) introduced S 1175, the Hazardous Materials Rail Transportation Safety Improvement Act of 2015. The bill takes a somewhat unique method of improving the safety of hazardous material rail transportation.

Rail Spill Liability Account

Title I of the bill adds a new section to 26 USC 9509, the Oil Spill Liability Trust Fund, establishing the Hazardous Liquids Rail Spill Liability Account within that Trust Fund. The Secretary of the Treasury would put any new monies deposited into the OSLTF resulting from rail transportation of oil from:

∙ Amounts recovered under §1006(f) or §1015 the Oil Pollution Act of 1990 for damages to natural resources;

∙ Any penalty paid pursuant to §309(c) of the Federal Water Pollution Control Act,

∙ The Deepwater Port Act of 1974; or

∙ Section 207 of the Trans-Alaska Pipeline Authorization Act.

Additionally §103 of the bill would add a new Subchapter E to 26 USC Chapter 38 levying a new fee on shippers of ‘hazardous flammable liquids’ that loads such materials into a DOT 111 railcar. The sliding scale fee would be $175/car loading for cars loaded before January 1^st, 2017; $350 between that date and January 1^st, 2018; $700 until January 1^st 2019; and $1400 thereafter. The monies from this fee would be deposited in the Oil Spill Liability Trust Fund established in this bill.

Monies from the HLRSL account may be appropriated for purposes outlined later in this proposed bill in addition to monies for DHS hazmat response planning and training under 49 USC 5116.

To ensure that rail road related discharges of flammable liquids are covered by the Oil Pollution Act of 1990 for the financial purposes of this act. First the bill would amend 33 USC 2702 by specifically adding dangerous flammable liquid spills “resulting from rail transportation of such oil” {§102(a)} to the elements necessary for liability under the Oil Pollution Act without respect to the location of the spill “into or upon the navigable waters or adjoining shorelines or the exclusive economic zone”.

Next the legislation would require the PHMSA Administrator to designate as a hazardous substance any Class 3 hazardous material that is “discharged due to rail transportation" {new 33 USC 1321(b)(2)(A)(ii)}.

Finally, §104 will add a new section 45S to Chapter A of 26 USA that would add a limited tax credit for converting CPC-1232 tank cars into the new type designated for flammable liquid service. The bill was written before the publication of the DOT HHFT final rule, but the wording makes it clear that the conversion would be to the DOT 117R standards. The Treasury would be compensated for the monies lost to the tax credit from the Oil Spill Liability Trust Fund.

Preparedness

Section 201 would add a new requirement to the public sector hazmat response training standards of 49 USC 5115. It would mandate that the training curriculum would also recommend a  “course of study to train public sector employees to respond to an accident or incident involving trains transporting at least 20 tank cars of flammable liquids or gases” {new §5115(b)(1)(B)}.

Section 202 would amend 49 USC 5116 to add as an allowable use of the §5116(a) planning grants to “develop, improve, and carry out emergency plans for communities through which railroads transport a train or trains transporting at least 20 tank cars of flammable liquids or gases” {new §5116(a)(1)(C)}. A similar change would be made to the §5116(b) training grants by §203 of the bill.

Section 204 would require the DOT Secretary to establish a grant program to “provide financial assistance for local projects, activities, and personnel that mitigate the impacts of, and public health or environmental risks associated with, the transport of flammable liquids or gases by rail” {§204(b)}.

Section 205 would require the Secretary of Transportation to implement the following recommendations from the NTSB within 1 year of the enactment of this act:

∙ R-07-002;

∙ R-14-014;

∙ R-14-018;

∙ R-14-019; and

∙ R-14-075/76

Data Collection

Title III of the bill requires the conduct of a number of studies and submission of reports to Congress. They include reports on:

∙ The availability of equipment and firefighting materials appropriate for a large-scale release of flammable liquids or gases along HHFT routes;

∙ A census of the number and types of rail tank cars used to carry Class 3 hazardous materials;

∙ A quarterly survey of the volume of flammable energy products transported by rail; and

∙ An analysis of the risks to public health, public safety, the environment, and property that are associated with transporting large volumes of hazardous materials in unit trains.

Appropriations

The bill would add authorizations for many of the programs required in this bill. The new rail hazardous response planning and training grants would be authorized $15 Million in spending for the next three years. The new rail hazmat mitigation project grants would be authorized at $25 Million. And $5 Million would be authorized for each of the first three studies reported above.

Finally there would be $100 Million authorized for spending on CERCLA responses to hazardous substance releases resulting from rail transportation. The CERCLA funds would remain available until expended.

Moving Forward

This bill was referred to the Senate Finance Committee because of the tax code measures included in the bill. Wyden is the Ranking Member of that Committee and one of the eight cosponsors, Sen. Schumer (D,NY), is an influential member of that Committee. There is a slight chance that this bill may make it to the Committee for consideration. I doubt, however, that this bill will make it to the floor of the Senate.

Commentary

This is a rather unusual take on the problem of flammable train safety; addressing the financial side of the issue. The idea of setting up a trust fund to handle the cleanup costs associated with the crude oil spills (and make no mistake that is the major target of this bill) certainly has a long precedence. Adding this to the current oil spill trust fund (which was really intended to deal with spills into waterways) seems like a bit of a stretch, but it would save the administrative costs of setting up a completely new administrative agency.

We have not been hearing much about the cost of cleaning up after these crude train derailments. I’m sure that there are significant costs involved, but I think that they are mainly being dealt with by the railroads. Communities will still have costs associated with these incidents, but it doesn’t really seem that those are being addressed in this legislation.

There is really only one very controversial component of this bill and that is the tax (I’m sorry ‘fee’) on loading flammable liquids into DOT 111 railcars. This is certainly a different way to go about forcing the industry to changing out the use of DOT 111 railcars. There will certainly be opposition to these provisions from the owners/leasers of these cars. They are already suing DOT about the phase out schedule in the HHFT rule and the tax schedule is much steeper in this bill. Vocal and effective political opposition to this new fee must be expected.

Even if this bill does manage to move forward (and a major HHFT accident in a town or urban area will would drastically change the political considerations moving this bill forward) there will have to be a number of modifications made to make it better align with the HHFT final rule. The frequent reference to the ’20 flammable railcars’ language comes quick to mind.

Bills Introduced – 04-28-15

Seventy-four bills were introduced in the House and Senate yesterday. Three of those may be of specific interest to readers of this blog:

HR 2074 To enhance rail safety and provide for the safe transport of hazardous materials, and for other purposes. Rep. Norcross, Donald [D-NJ-1] 

S 1114 A bill to enhance rail safety and provide for the safe transport of hazardous materials, and for other purposes. Sen. Menendez, Robert [D-NJ]

S 1118 A bill to authorize appropriations for fiscal year 2016 for military activities of the Department of Defense and for military construction, to prescribe military personnel strengths for such fiscal... Sen. McCain, John [R-AZ]

It looks like the first two bills are companion measures that may specifically address crude oil train issues. It may be a wider hazmat transportation emergency response bill based upon the vinyl chloride derailment a couple of years ago in New Jersey.

S 1118 is the Senate version of the annual DOD authorization bill. The House version (HR 1735) did not contain any cybersecurity provisions. We will have to wait and see if the Senate version does.

FRA Issues Railworthiness Directive 1 – McKenzie Valves

Today the DOT’s Federal Railroad Administration (FRA) published Railworthiness Directive #1 identifying a series of unauthorized valves currently in use on a large number of railcars. The design of these valves leads to their leaking in service.

As a result of an investigation into 17 leaking crude oil tank cars on a BNSF train heading to Anacortes, Washington from the oil fields in North Dakota, the FRA has identified a family of ball valves (3”, 2” and 1” UNNR valves) produced by McKenzie Valve and Machining that are routinely damaged in normal use. Further investigation determined that the design of these valves had not actually been approved by the AAR Tank Car Committee as thought by McKenzie and UTLX, the tank car company who owns the cars where these valves have been found.

According to FRA’s investigation the valves are only damaged when installed with a plug the same size as the ball-valve. When a reducer is used instead, the valves appear to function as designed. With that in mind the FRA is requiring any tank car with the affected McKenzie valves installed with a full-size plug be immediately removed from hazmat service (loaded or residual). Because the valves, even with reducers, are not of approved design, the FRA is requiring the replacement of valves equipped with reducers. Tank car owners equipped with the 3” valves with reducers have until May 12^th to replace them and until June 11^th to replace the 1” and 2” valves equipped with reducers.

Even though the FRA has found at least one of the offending valves in other hazmat service, most of the leaking valves have been found on crude oil cars. Because of this I expect that this problem will be used to help call for further restrictions on the shipment of crude oil by rail.

OMB Approves FRA Securement NPRM

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the DOT’s Federal Railroad Administration’s (FRA) notice of proposed rulemaking on hazmat train securement. This proposed rulemaking was not listed in the Administration’s Spring Unified Agenda.

As I noted in an earlier blog post this NPRM probably looks like the rule proposed by the FRA’s Railroad Safety Advisory Committee (RSAC) back in April. That proposed rule would apply to trains with single cars of toxic inhalation hazard (TIH) chemicals or trains with 20 cars (total) of almost any other hazardous material. It would cover most freight trains that I have watched at road crossings over the years.

This rulemaking apparently has a high level of interest within the Administration. It was submitted to OIRA on August 15^th and approved yesterday; that is fast action time for OMB. I expect that it will be published in the Federal Register later this week.