Bills Introduced – 05-20-14

Both the Senate and House were in session yesterday and a total of 31 bills were introduced. Four of those bills may be of specific interest to readers of this blog:

HR 4687 Latest Title: To amend title 49, United States Code, to provide for the inspection of pipeline facilities that are transferred by sale and pipeline facilities that are abandoned, and for other purposes. Sponsor: Rep Hahn, Janice (D,CA)

HR 4689 Latest Title: To require a plan approved by the Surface Transportation Board for the long-term storage of rail cars on certain railroad tracks. Sponsor: Rep Kline, John (R,MN)

S 2354 Latest Title: A bill to improve cybersecurity recruitment and retention. Sponsor: Sen Carper, Thomas R. (D,DE)

S 2365 Latest Title: A bill to prohibit the long-term storage of rail cars on certain railroad tracks unless the Surface Transportation Board has approved the rail carrier's rail car storage plan. Sponsor: Sen Klobuchar, Amy (D,MN)

The two railcar storage bills are probably identical companion measures. I’ll report on them if they contain specific language referring to railcars containing hazardous chemicals.

I suspect that the cybersecurity bill refers to ‘recruitment and retention’ in the Federal sector, so it may not get any additional coverage unless the language will have specific impact on the private sector.

OMB Announces PHMSA Submission of Crude Oil Train NPRM

Yesterday OMB announced that DOT Pipeline and Hazardous Material Safety Administration had submitted a notice of proposed rulemaking for “Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains”. The notice actually points back to the rulemaking associated with the PHMSA advanced notice of proposed rulemaking (ANPRM) published last September (78 FR 54849-54861) entitled “Rail Petitions and Recommendations to Improve the Safety of Railroad Tank Car Transportation”.

This rulemaking is proceeding much faster than is normal for PHMSA, especially considering the complexity of the issues involved. This reflects the high political importance of the rulemaking due to the increasing number of high-profile accidents involving crude-oil unit trains within the last year (including yesterday’s accident in Lynchburg, VA). I suspect that the OMB’s Office of Information and Regulatory Affairs will act fairly quickly on this NPRM.

Rail Emergency Response Equipment

I read some interesting testimony this weekend from Tod Perlin, Fire Chief from the Town of Rangely, ME. He was one of the US first responders that aided the local Canadian fire department during the immediate aftermath of the Lac-Megantic crude-train derailment last year. His description of what happened is very moving and well worth reading.

There is one very important point that he made in his testimony at the THUD Subcommittee of the Senate Appropriations Committee hearing on rail safety. He mentioned that, in addition to pumping water out of a local lake (the ‘lac’ of Lac-Megantic) because the local fire hydrant system was compromised in the explosions following the derailment, fire fighters used ”8000 gallons of foam [that]was trucked in from the refinery in Toronto to help extinguish the burning rail cars”.

This is one of the major emergency response problems for crude oil and ethanol transportation emergencies; special fire-fighting foam is needed to put out these fires; water just spreads the flames. Fire-fighting agencies that have fuel terminals or refineries in their response areas will typically have access to these specialized foams (and the associated equipment to apply the foam), but most fire-fighters will not have access to this important tool. It is just too expensive and hard to justify on short budgets.

One way to ensure that first responders to rail accidents involving unit trains of crude oil or ethanol have immediate access to the essential (and correct type of) fire-fighting foam would be to require railroads to haul a specialized car at the rear-end of such unit trains that carries the appropriate foam and the necessary application equipment. This way fire departments along rail rights-of-way would not need to stock the required equipment; they would only have to pay for the training in its use.

If the equipment was properly designed and the operation clearly documented, the training costs could probably be almost eliminated. If a crew of fire-fighters had to read a 5 minute tutorial on the use of the equipment, it would still be much more readily available than a foam unit being trucked in from the nearest refinery or fuel depot.

To the best of my knowledge, these cars do not yet exist. But this is clearly a need that calls out for fulfillment. And if the railroads and shippers cannot figure that out, maybe they need some encouragement from the FRA and PHMSA.

NTSB Announces Inquiry into Crude Oil and Ethanol Shipping

The National Transportation Safety Board published a meeting notice in Monday’s Federal Register (79 FR 20922-20933; available on line today) concerning a public forum to be conducted about the rail transportation of crude oil and ethanol. The public meeting will be held on April 22^nd thru 23^rd in Washington, DC.

The NTSB members will be acting as a board of inquiry and there will be a number of invited panels of technical experts from the Federal Road Administration (FRA), the Pipeline and Hazardous Material Safety Administration (PHMSA), railroad owner/operators, emergency responders and industry groups. A listing of the panels and their members can be found on the Forum agenda web page and the panel member biographies can be found here.

Areas to be addressed during the two-day meeting include:

• A review of crude oil and ethanol railroad accidents

• Tank Car Design, Construction, and Crashworthiness

• Rail Operations and Approaches to Risk Management

• Emergency Response to Tank Car Releases of Crude Oil and

Ethanol

• Federal Oversight and Industry Initiatives Related to Crude Oil and Ethanol Transportation by Rail

The NTSB is soliciting public input on the topics being considered. Written comments may be emailed to the NTSB at railsafetyforum@ntsb.gov. There are no provisions for the public to provide oral presentations at the forum. The forum will be web cast and the web cast will be available for three months after the meeting.

Safe Transportation and Energy Products Fund

Last Friday sixteen Democrats sent a letter to the Senate Appropriations Committee’s Subcommittee on Transportation, Housing and Urban Development, and Related Agencies requesting that they include in the Transportation, Housing and Urban Development (THUD) spending bill for FY 2015 (now being written by that Subcommittee) an unspecified amount of money for a new Safe Transportation and Energy Products Fund.

According to that letter actual authorization language for that Fund would be included in a rail transportation program bill to be introduced later this year. Interestingly only two of the Senators {Boxer (D,CA) and Walsh (D,MT)} that have signed this letter are on the Transportation and Infrastructure Committee, the Committee responsible for crafting such legislation.

The letter lists the following DOT activities that would benefit from this fund:

• More expeditious rulemakings;

• Technical studies;

• Increased rail and energy product inspections;

• Safety mitigation and response planning;

• First responder training;

• Community outreach; and

• Additional resources to complete Operation Backpressure [I think they mean Operation Classification]

With the exception of ‘more expeditious rulemakings' additional funds would allow FRA and PHMSA to expand their efforts in the above listed areas. That additional work would help to make the rail transportation of energy chemicals (particularly crude oil and ethanol) safer.

It is unusual, however, that such a letter was not signed by the Chair of the Transportation and Infrastructure Committee. The chair of a committee with oversight responsibilities is expected to help provide guidance to the Appropriations Committee on the allocation of funds for the various agencies and departments of the government. And Sen. Rockefeller (D,WV) has not been reticent in making such communications.

The absence of Rockefeller’s signature or that of Sen. Blumenthal (D,CT; the Chair of the Surface Transportation and Merchant Marine Infrastructure, Safety and Security Subcommittee) suggests that there is not a current effort in the Committee to include any language in a rail transportation program authorization bill for this fund.

In fact, this looks like an effort to bypass Sen. Rockefeller, typically an effort that is bound to fail.

STB Announces Meeting of RETAC, 3-6-14

Today the Surface Transportation Board (STB) published a meeting notice in the Federal Register (79 FR 9587-9588) for a meeting of the Rail Energy Transportation Advisory Board on March 6^th, 2014. Potential agenda items for this meeting include:

• Introduction of new members;

• A performance measures review;

• Discussion of domestic oil production and transportation;

• Industry segment reports by RETAC members;

• A presentation on the domestic coal market; and

• A roundtable discussion.

There is not yet an actual agenda for the upcoming meeting on the RETAC web site. There are some interesting items from the minutes of the last meeting on September 19^th, 2013:

• The Association of American Railroads reported “a performance measure of 99.998% for successful transportation of hazardous materials. Accident rates are down, resulting in rail being the safest mode of transportation. Crude oil shipment performance has been excellent, resulting in product loss of only 2.2 gallons per million ton miles.” Page 2 of Minutes. I suspect that the figures have probably changed since then.

• The Rail Fleet Update continues to show a large backlog of new bulk tank cars and further projected growth in the petroleum transportation process.

• The Rail Crude Oil Segment Report (NOTE: there is some sort of problem with data visualization on page 2; it just won’t load) contains some interesting graphics on the increase in the barrels of crude oil shipments originating in North Dakota (slide 4) and showing that 68% of the crude shipped from that region goes by rail.

The public is invited to attend the meeting, but there does not appear to be any provisions for public oral comments at the meeting. The STB is soliciting written comments; they should be emailed to Michael Higgins (Michael.Higgins@stb.dot.gov).

Bills Introduced – 12-03-13

While the House passed a number of non-controversial bills yesterday its members only submitted a small number (13) of new pieces of proposed legislation. Of those, only one may be of specific interest to readers of this blog:

HR 3634 Latest Title: To make loans and loan guarantees under section 502 of the Railroad Revitalization and Regulatory Reform Act of 1976 available for implementing positive train control systems, and for other purposes.  Sponsor: Rep Maloney, Sean Patrick (D,NY).

FRA-PHMSA Meeting Agenda – 8-27-13

Today is the first of a two-day joint public meeting between the Federal Railroad Administration (FRA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) that I previously mentioned. The agenda for the meeting is available on line and it may not be too late to sign-up for the teleconference link.

There are a couple of interesting topics on the agenda for today. They include a discussion of the §174.24 requirement for train crews to have information on hazmat materials physically on hand and a discussion of §174.67 requirements for transloading operations.

The biggest non-surprise of the agenda is tomorrow’s discussion about the safe transportation of crude oil, ethanol and flammable gasses. Much of the discussion will presage the Railroad Safety Advisory Committee meeting on Thursday to specifically discuss the safety response to the Canadian crude oil train derailment. The agenda for that meeting is supposed to be published by tomorrow.

S 1462 Introduced – PTC Delay

As I noted earlier Sen. Thune (R,SD) introduced S 1462 the  Railroad Safety and Positive Train Control Extension Act. This bill would amend 49 USC 20157 by extending various deadlines for the implementation of positive train control (PTC) technology.

Five Year Statutory Extension

Section 2b of the bill would amend §20157 to change the requirements for submitting plans for PTC implementation. The deadline for submitting plans (already passed) is removed. The date by which plans would be implanted would be changed to December 31^st, 2020. Finally the date used for determination of which sections of track must be covered by PTC equipment is changed to December 31^st, 2015.

Additional Extensions Authorized

Section 3(a) would give the DOT Secretary authority to provide additional extensions if requested by the railroads. Section 20157 is amended by adding paragraph (i) that establishes the limits of that authority. The Secretary is allowed to authorize one-year extensions if it is found that the railroad has made a good faith attempt to implement its PTC plan, and has submitted a new plan.

The Secretary must determine that the reason for the inability to complete the PTC implementation is due to circumstances beyond the control of the railroad. The new language provides some examples of such circumstance {§20157(i)(1)(A)} including:

• Funding availability;

• Spectrum acquisition;

• Resource and technology availability;

• Software development and testing;

• Availability of alternate risk reduction strategies; and

• Interoperability standards.

Presumably this would also include the problems with FCC antenna licensing identified by various House Committee Chairs.

The authority for these incremental one-year extensions would not allow for delaying the implementation of the PTC plan beyond December 31^st, 2022 {§20157(i)(1)(D)}. There is an additional fig-leaf restriction on this extension authority. The Secretary must take into consideration “whether the affected areas of track have been identified as areas of greater risk to the public and railroad employees in the applicant’s positive train control implementation plan under section 236.1011(a)(4) [Link Added] of title 49, Code of Federal Regulations” {§20157(i)(2)(A)}.

CFR Revision Required

The Secretary is given 180 days by §4 of this bill to make specific (and limited) changes to PTC regulations. The deadlines in 49 CFR 236.1006(b)(4)(iii)(B) would have to be extended by 5 years. Those deadlines deal with the requirements for Class II and Class III railroads to have locomotives equipped with PTC equipment if they will be moving more than 20 miles on a PTC controlled section of track.

Normally 180 days is way too short of a time to make substantive changes to Federal Regulations. Given the limited nature of the changes required by this section and the fact that the Secretary is given no regulatory discretion in this particular change, there should be no real problem in complying with this section. A direct final rule without the need for a public comment period is all that is required.

Moving Forward

It is becoming painfully apparent that Congress was a tad bit aggressive in establishing the time limits for the implementation of these PTC requirement and that the railroads will not be able to fully implement their PTC plans by the currently required date of December 31^st, 2015. This is a fairly straight forward extension plan that should be able to be accepted by a clear bipartisan majority in both houses of Congress.

The only question will be when this bill could actually be considered. The main (and contentious) issue facing Congress on their return from the Summer Recess will be the various spending bills that must be passed by October 1^st. The political gamesmanship that will be involved in that controversy will almost certainly impede congressional work on less disruptive legislation through the end of the year. This bill may languish until 2014.

FRA Emergency Order – Securing Trains

Late this afternoon the Federal Railroad Administration (FRA) published an emergency order to Prevent Unintended Hazardous Materials Train Movement. This action is being taken as an interim measure while the accident investigation of the recent derailment, fire and explosions in Lac-Mégantic, Quebec, Canada determines the root cause of that fatal accident. The emergency order and a separate Joint FRA/PHMSA safety advisory were published on the FRA web site. I expect that they will be published in the Federal Register some time next week.

According to a press release about the EO all railroad operating in the United States must complete the following listed actions within the next 30 days:

• No train or vehicles transporting specified hazardous materials can be left unattended on a mainline track or side track outside a yard or terminal, unless specifically authorized.

• In order to receive authorization to leave a train unattended, railroads must develop and submit to FRA a process for securing unattended trains transporting hazardous materials, including locking the locomotive or otherwise disabling it, and reporting among employees to ensure the correct number of hand brakes are applied.

• Employees who are responsible for securing trains and vehicles transporting such specified hazardous material must communicate with the train dispatchers the number of hand brakes applied, the tonnage and length of the train or vehicle, the grade and terrain features of the track, any relevant weather conditions, and the type of equipment being secured.

• Train dispatchers must record the information provided. The dispatcher or other qualified railroad employee must verify that the securement meets the railroad’s requirements, and they must verify that the securement meets the railroad’s requirements.

• Railroads must implement rules ensuring that any employee involved in securing a train participate in daily job briefings prior to the work being performed.

• Railroads must develop procedures to ensure a qualified railroad employee inspects all equipment that an emergency responder has been on, under or between before the train can be left unattended.

• Railroads must provide this EO to all affected employees.

I’ll have additional details about the EO and Safety Advisory later this weekend.