Bills Introduced – 05-15-15

There were 48 bills introduced in the House on Friday (the Senate was not in session). Of those only two may be of specific interest to readers of this blog:

HR 2353 To provide an extension of Federal-aid highway, highway safety, motor carrier safety, transit, and other programs funded out of the Highway Trust Fund, and for other purposes. Rep. Shuster, Bill [R-PA-9]

HR 2379 To prohibit the transportation of certain volatile crude oil by rail. Rep. Lowey, Nita M. [D-NY-17]

A copy of the text of HR 2353 [typo on bill # corrected 5-18-15 0900 CDT] is already available. In addition to extending the current spending authorization for transportation related programs funded by the Highway Trust fund through July 31^st, it would also extend the funding for various hazardous material training and response programs for the same period. This bill will be considered by the House Rules Committee on Monday and the full House on Tuesday.

It looks HR 2379 will be another bill that would attempt to reduce the risk of fires and explosions from crude oil train derailments by limiting the volatility of that crude.

2015 CSSS Update – 05-16-15

Still no registration information for the 2015 Chemical Sector Security Conference, but DHS has added a ‘neat’ new ‘Save the Date’ flyer (.PDF) to the CSSS web site.

The CSSS web site also has a new added feature; a listing of ‘Summit Highlights’. An interesting addition to that list is “Discover how to use social media during incident management.”

Unfortunately there is still no indication that DHS intends to web cast the CSSS. With the limited attendance space available and the declining attendance over the last couple of years, this would seem to be an obvious way to reach out to the entire chemical sector (much less the more than 3,000 CFATS facilities). Oh well, DHS does seem to be discovering social media so there is still hope.

PHMSA Final Rule on HHFT – Shipper Requirements

This is part of a continuing look at the recently published final rule on highly-hazardous flammable trains (HHFT; HM-251). Earlier posts in the series include

DOT and Canadian Transport Ministry Announce New HHFT Final Rule

PHMSA Final Rule on HHFT – Route Selection

PHMSA Publishes HHFT ICR Revision 60-day Notice

PHMSA Final Rule on HHFT – Speed Limits

In this post I will be looking at the new requirements that the offeror of crude oil has for the characterization of that material. Even though there are already requirements in the  hazardous material regulations to properly classify hazardous materials for shipment, PHMSA is adding a new section that specifically addresses additional measures that a shipper of crude oil must take.

Current Requirements

There is a lengthy discussion in the preamble concerning the current requirements for classifying hazardous materials. In general 49 CFR 173.22 requires the offeror to properly “class and describe a hazardous material in accordance with parts 172 and 173 of the HMR.” There is no specific mention of how often the testing has to be done to achieve that objective, just that the testing needs to have been done.

NPRM Proposal

In the NPRM PHMSA proposed adding a new §173.41 that would outline new testing requirements for mined gasses and liquids. The justification was that, while most hazardous materials shipped by rail were manufactured product with some level of consistency of characteristics, crude oil was taken from the earth and the specific characteristics varied not only by the location of extraction, but could vary by the time of year or extraction technique employed.

The NPRM proposal would have required the following areas to be addressed by the offeror:

∙ Frequency of sampling and testing;

∙ Sampling at various points along the supply chain

∙ Sampling methods;

∙ Testing methods;

∙ Statistical justification for sample frequencies;

∙ Duplicate samples for quality assurance purposes; and

∙ Criteria for modifying the sampling and testing program.

There is a lengthy discussion in the preamble about the large number (65,000+) public comments made about these crude oil characterization requirements and the PHMSA responses to those comments.

API RP 3000

One of the specific areas in that discussion that has an important bearing on the testing of crude oil is the new document from the American Petroleum Institute; API Recommended Practice 3000, Classifying and Loading of Crude Oil into Rail Tank Cars. This document obtained its final approval after the end of the comment period for the NPRM, so PHMSA was not able to include an intent to incorporate this standard by reference.

PHMSA did note in their preamble discussion that:

“The one area where the concerned public, environmental groups, and industry stakeholders agreed was that API RP 3000 should be adopted or permitted as a method of compliance with the proposed requirements.”

PHMSA does explain that:

“Furthermore, the boiling point test specified in the API RP 3000 does not align with the requirements currently authorized in the HMR. Shippers must continue to use the testing methods for classification of flammable liquids outlined in § 173.120 and flammable gases in § 173.115. However, API RP 3000 is otherwise consistent with the sampling program requirements in paragraph 173.41(a)(1)-(6) and may be used to satisfy these adopted sampling provisions.”

Finally, PHMSA notes in the final paragraph of the discussion of characterization that: “It should be noted that PHMSA may consider the adoption of the non-codified testing provisions of API RP 3000 in a future rulemaking.”

Changes in §173.41

In general the NPRM version of §173.41 pretty much made it into the final rule. There were some changes. First, of course, is that the term ‘mined gasses and liquids’ was changed to a slightly more restrictive ‘unrefined petroleum-based products’. The term ‘classification’ has also been removed with PHMSA clarifying the related requirement for the sampling and testing program to include a requirement to “identify properties relevant to the selection of packaging through testing or other appropriate means”.

PHMSA is also clarifying §173.41(a)(1) to specify that the program must account for “any appreciable variability of the material” with a list of recommended factors. They are also amending § 173.41(a)(3) to replace “as packaged” with “as offered” to clarify that the sampling may occur before the crude oil has been loaded into a transport vehicle.

Summary of §173.41

The following summary is taken directly from the final rule. Links have been added to the actual language of the appropriate portion of the added language:

“In this final rule, we are adding a new section 173.41 prescribing a sampling and testing program for unrefined petroleum-based products. This section specifies what must be included in a sampling and testing program in paragraph (a). Paragraph (b) of this section requires shippers to certify that unrefined petroleum-based products are offered in accordance with this subchapter, to include the requirements prescribed in paragraph (a). Paragraph (c) provides the requirements for documentation, retention, review and dissemination of the sampling and testing program. Finally, paragraph (d) of this section states that each person required to develop a sampling and testing program make the documentation available upon request to an authorized official of the Department of Transportation.”

Subcommittee Amends and Adopts CBRN Intel Bill

Yesterday the Subcommittee on Emergency Preparedness, Response, and Communications of the House Homeland Security Committee passed two amendments to HR 2200, the CBRN Intelligence and Information Sharing Act of 2015 by voice vote and then recommended the bill to the full Committee.

The first amendment was the substitute language from Chair McSally (R,AZ) that I described in an earlier post. The second amendment was offered by Rep. Payne (D,NJ), the Ranking Member of the Subcommittee. That amendment added local public health departments to the agencies to be notified of CBRN information developed by the Office of Intelligence and Analysis of the Department of Homeland Security.

As I mentioned earlier while this legislation is billed as chemical, biological, radiological and nuclear intelligence bill, it is clear that the main focus is actually biological attacks. I understand the concern with the consequences of a successful bio-attack it still takes a great deal of sophistication to execute an attack of this sort, much more sophistication than it takes to conduct an attack with industrial chemicals.

House Amends and Passes 2016 NDA

This morning the House finished the amendment process on HR 1735, the National Defense Authorization Act for 2016. A large number of amendments to the bill were adopted including both of the amendments (drone and cybersecurity) that I mentioned in yesterday’s post on the bill. Both of the amendments were included in en bloc considerations adopted by voice vote yesterday. The final vote was a partially bipartisan vote of 269 to 151.

The Senate Armed Services Committee is finishing up their markup of the Senate version of the NDA. The full Senate will take up that bill in the coming weeks. Then a conference committee will be convened to work out the differences in the two bills before it is voted upon again by both house of Congress and shipped off to the President for signature. There has been a presidential threat to veto the current House version of the bill.

Rail Hazmat Response Bills Introduced in Senate and House

Two weeks ago HR 2074, the Toxics by Rail Accountability and Community Knowledge (TRACK) Act of 2015 and its companion bill, S 1114 were introduced respectively by Rep. Norcross (D,NJ) and Sen. Menendez (D,NJ) respectively. A similar bill S 2858 was introduced on the last day of the regular session of the 114^th Congress. The bills are a response to the 2012 Conrail freight train derailment and toxic chemical spill in Paulsboro, NJ.

Right-to-Know

Section 2 of the bill would establish a requirement for railroads that were determined to be at fault for a rail accident that released hazardous materials to periodically review health assessments that would indicate that personnel exposed to the release “could experience long-lasting or irreversible health consequences” {§2(b)(1)}. If such information became available the railroad would also be required to inform the affected population and offer to renegotiate any settlements based upon the new information.

Civil penalties for failure to comply with these new requirements are set according to the Class rating of the railroad.

Commodity Flow Information

Section 3 of the bill would require the Secretary of Transportation to establish regulations (within 2 years) mandating that railroads would provide current and accurate commodity flow data to “first responders, emergency response officials, and law enforcement personnel in the communities through which the hazardous material is transported” {§3(a)(1)}. The regulations would also obligate railroads to provide assistance for the development of emergency response plans to protect communities “in the event of a railroad accident or incident involving the hazardous material” {§3(a)(2)}.

Movable Bride Requirements

Section 4 addresses the requirements for crossing a movable rail bridge that is showing a red light, the proximate cause of the Paulsboro, NJ derailment according to the NTSB report. It would require the Secretary to establish regulations (within 18 months) for such requirements. The regulations would include inspection training requirements and qualifications for personnel authorized to conduct the inspections. The bill also establishes civil penalties for the violation of those regulations that would vary according to the Class ranking of the railroad involved.

Route Risk Assessment

Section 5 requires the Secretary, in conjunction with the American Shortline and Regional Railroad Association, to “develop a route risk assessment tool for the use of short line and regional railroad carriers” {§5(a)}. This new tool would specifically address any known shortcomings of the Corridor Risk Management System being used by Class 1 railroads.

This section would also require the Secretary, in coordination with DHS (TSA requires the use of the CRMS for route security assessments) to conduct audits of route risk assessments conducted by short line and regional railroads.

Risk Reduction Program

Section 6 would amend 49 USC 20156 by adding a new sub-paragraph to §20156(d)(1) explaining an additional program element for the railroad risk reduction program:

“(T)he use of safety management systems and their associated key principles, including top-down ownership and policies, analysis of operational incidents and accidents, and continuous evaluation and improvement programs.”

Additionally the section declares it to be the sense of Congress the Secretary should include in the definition of ‘a railroad carrier that has an inadequate safety performance’ “any railroad carrier that is at fault for an incident, accident, or emergency involving hazardous materials that has led to a fatality or personal injury, an evacuation, or environmental damage within the last 5 years” {§6(b)}.

First Responder Information

Section 7 of the bill would require the Secretary to develop regulations (within 1 year) to oblige railroads transporting hazardous materials to be able to provide timely and accurate train consists to emergency responders at an accident. It would also require the Secretary to ensure that train crews had information on hazardous materials being transported that was “consistent with, and is at least as protective as, the emergency response guidance provided in the Emergency Response Guidebook issued by the Department of Transportation” {§7(b)}.

Public Education

Section 8 would require the Secretary to develop regulations (within 1 year) establishing the requirement for railroads transporting hazardous materials “to develop, implement, and periodically evaluate a public education program for the communities along railroad hazardous materials routes”. Such programs would include:

∙ Procedures for reporting the release of a hazardous material;

∙ Physical indications of a release of a hazardous material, including a focus on hazardous materials that are most commonly transported in or near a given community;

∙ Methods of communication that will be used to alert the community in the event of a railroad incident, accident, or emergency involving a hazardous material;

∙ Steps that should be taken by community residents to ensure public health and safety in the event of a hazardous material release; and

∙ A discussion of possible public health and safety concerns associated with an unintended release of a hazardous material, including a focus on hazardous materials that are most commonly transported in or near a given community.

Moving Forward

Neither Sen. Menendez nor Rep. Norcross are on their respective transportation committees so it is unlikely that either of these bills will receive consideration at the committee level. This means, of course, that the chance of either bill making to the floor of the respective house is just about nonexistent.

Commentary

There is a lot of good stuff in these two bill, things that could make a difference to first responders and communities responding to hazmat train derailments. If the movable bridge provisions had been put in a separate bill, Menendez and Norcross could probably have convinced any number of congress critters to co-sponsor this bill because of concerns with recent crude oil train derailments. Co-sponsorship by members on transportation committees might have been able to ensure that this bill would get considered.

There is one part of this bill that is problematic at best; the public education provisions in §8. These provisions would certainly be appropriate for personnel that lived or worked near a fixed chemical plant, but are unreasonable when applied to a railroad route hundreds of miles long. The number of people affected would be so large as to be completely unmanageable. Community activists have been trying these education programs around fixed facilities with limited success for years because most people just don’t care.

Besides, since rail hazmat accidents are so rare (they really are if you look at the ton-miles of hazmat transportation) and the ones that do occur seldom affect a significant number of people (most accidents are in non-urban areas), DOT would never be able to complete a cost benefit analysis that would justify the cost of the regulations.

EAP Guidance – SSP Status

This is part of a continuing series of blog posts on the newly released Expedited Approval Program (EAP) guidance document for Tier 3 and Tier 4 facilities under the Chemical Facility Anti-Terrorism Standards (CFATS) program. Other posts in the series are:

DHS Issues Expedited Approval Program Guidance

CFATS EAP Federal Register Notice

EAP Guidance – The Process

I have noted in a couple of these blog posts that it has been unclear how a Tier 3 or Tier 4 facility’s SSP status affects their ability to file an SSP under the EAP process. Obviously newly tiered facilities that have not yet submitted an SSP may choose this option. The question really applies to those facilities that have already started the SSP process; either having submitted an SSP or ASP via CSAT, have hand their SSP or ASP authorized by DHS, or even have had their SSP or ASP approved by DHS.

For informational purposes, here is the latest information available for the SSP status of Tier 3 and Tier 4 facilities

	SSP Authorized	SSP Approved
Tier 3	93%	70%
Tier 4	87%	51%

I have been told that any Tier 3 or Tier 4 facility, regardless of the status of their SSP are eligible. Specifically I was told that even facilities with an approved SSP can use the EAP process. It is not yet clear how this will all be done; we will have to wait and see what new Chemical Security Assessment Tool (CSAT) applications are provided for the EAP process. It looks like we will see the first one on June 16^th; that will be the tool for notification to DHS that a facility intends to apply for an EAP SSP.

What this does mean is that every Tier 3 and Tier 4 CFATS facility owes it to themselves to closely review the EAP guidance and determine if it makes sense to change their current SSP (at whatever stage in the process) to an EAP SSP.

One other thing to take into consideration is that it appears that ISCD is intending to prioritize the compliance inspections of EAP facilities. This makes a great deal of sense since no one in ISCD is actively involved in reviewing the details of the EAP SSP the way that they are during the standard SSP process. In effect, the compliance inspection will be the first time that ISCD has a chance to see how the EAP SSP is implemented at that particular facility.