S 2664 Introduced – Public Alert System

As I noted earlier Sen. Begich (D,AK) introduced S 2664, the Integrated Public Alert and Warning System Modernization Act of 2014. This bill appears to be very similar to HR 3283 that was ordered reported in the House back in April. It is probably a ‘companion bill’ but it is hard to tell because the House Homeland Security Committee has not yet actually reported the much amended bill, so we cannot see exactly what that bill looks like.

I don’t see anything particularly objectionable to anyone in the bill, so it would not seem that there would be any great impediment to its passage in either the House or Senate. The greatest obstacle will be convincing the leadership to actually bring the bill to the floor in the election season after the summer recess.

OMB Approves Published PHMSA OSPRP ANPRM

On an anti-climactic note, yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the already published ANPRM on railroad oil spill prevention and response plans (OSPRP) from DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA). I would hope that the changes indicated by OIRA’s concluded action’s “Consistent with Change” had already been made by PHMSA prior to the ANPRM being published last Friday.

OMB Still Reviewing PHMSA Oil Spill ANPRM

I was sure that I must have missed the OMB notice that their Office of Information and Regulatory Affairs (OIRA) had approved the PHMSA ANPRM for Revisions to Oil Spill Prevention and Response Plans for Rail Transport that was published in Friday’s Federal Register. This morning I just went back and checked the OIRA web site and that ANPRM is still under review.

It is more than a little odd that the three Administration agencies; PHMSA, OIRA, and Federal Register; are acting in such an uncoordinated manner. I suspect that someone at DOT decided that the two rules (the HHFT NPRM and the Oil Spill ANPRM) just had to be published together and damn the niceties of the regulatory approval process.

It will be interesting to see how the Administration decides to deal with this. Do they ignore the regulatory faux pas or do they withdraw the Oil Spill ANPRM?

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.

PHMSA Publishes High-Hazard Flammable Trains NPRM

On Friday DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 45015-45079) on new measures to be taken to increase the safety of crude oil trains. This NPRM follows the advance notice of proposed rulemaking (ANPRM) mostly on the same topic published last September.

PHMSA is taking a fairly comprehensive approach to improving the safety of what it is now calling ‘high-hazard flammable trains’. Where the ANPRM was mainly about the DOT-111 rail cars, this NPRM addresses:

• Trains incorporating multiple flammable railcars;

• Emergency response notification;

• Train routing;

• Classification of flammable materials;

• HHFT Requirements

• Tank car design; and

• DOT-111 phase out.

High-Hazard Flammable Trains

PHMSA is proposing to add a new definition to 49 CFR 171.8 defining ‘high-hazard flammable train’ (HHFT) as “a single train carrying 20 or more carloads of a Class 3 flammable liquid”. While this rulemaking is being pushed as a response to a number of high-visibility crude oil train wrecks in the last year or so, this simple definition has the potential to involve a number of industries other than the oil and gas industry in making changes to their shipments of flammable chemicals.

The NPRM states that “only crude oil and ethanol shipments would be affected by the limitations of this rule as they are the only known Class 3 (flammable liquid) materials transported in trains consisting of 20 cars or more”. But as the chemical processing industry begins to expand production capabilities to hand the new surge of oil and gas production the rail shipment of various flammable products made from these raw materials is also expected to surge. It is also not clear if other flammable liquids would be transported in trains containing the requisite number of crude oil or ethanol cars.

This is addressed in the NPRM by three questions about which PHMSA is seeking comments.

Emergency Response Notification

The proposed rule would add a new paragraph to the HMR, §174.310 that would include a subparagraph {§174.310(a)(2)} formalizing the recent emergency order requiring railroads to notify State Emergency Response Committees of trains carrying 1 million gallons or more of Bakken crude oil.

The NPRM does briefly address the issue of State disclosure of the routing information to the public. There is no new policy made here. PHMSA reiterates that the routing information is not Sensitive Security Information, and lacking any other means of controlling the information, State disclosure laws prevail. Three of the questions for this section of the NPRM address this information security issue.

HHFT Routing

PHMSA is proposing to modify the current 49 CFR 172.820 to add HHFT trains {§172.320(a)(4)} to the requirements for rail route analysis that currently applies to security-sensitive hazardous materials. This rail-route analysis-selection regulation has been more than a little controversial and I have seen no reports as to the actual effects this has had on routing of toxic inhalation hazard chemical shipments.

PHMSA is asking two specific questions about this rail route analysis topic.

Flammable Liquid Classification

There has been considerable discussion since the Canadian accident about the hazard classification of Bakken crude oil. PHMSA is proposing to add a new paragraph {§173.41} to the HMR to describe the sampling and testing requirements for ‘mined gasses and liquids). This new requirement does not specify what testing must actually take place, but rather requires that an appropriate sampling and testing protocol be established by the shipper.

The NPRM discussion notes that the American Petroleum Institute (API) has prepared a draft of a sampling and testing recommendation (API RP 3000) that is currently undergoing the API approval process. This provides much more detail about the testing process and considerations. I would suspect that it might get incorporated by reference if the final version of the API document is completed by the time that the final rule for this rulemaking gets published.

PHMSA has included five questions in the NPRM on this subject.

HHFT Train Requirements

The NPRM addresses two operational characteristics of trains in their discussion of ‘Additional Requirements for High-Hazard Flammable Trains’; train speed and breaking. Controls on these factors are intended to reduce the severity of any accident involving HHFT, but might also be expected to reduce by some small amount the number of accidents that occur (PHMSA does not include any accident elimination from these controls in their cost-benefit analysis).

The proposed regulation would add a new speed requirement as part of a newly added 49 CFR 174.310. Subparagraph (a)(3) {NOTE: There is a misprint in the NPRM discussion that refers to (a)(4) at this point} would limit HHFT’s to a maximum speed of 50 mph. Additional (read lower) speed requirements are set for a variety of circumstances of location and breaking systems and the presence of rail cars that do not meet the new construction requirements outlined in this NPRM.

Interestingly, the requirement for the new rail car design is applied to all flammable liquid carrying cars, not just the crude oil or ethanol that PHMSA claims to be the only shipments directly affected by this NPRM. There is another misprint in the discussion section that does not include the word ‘flammable’ in describing the tank cars that must meet the new standards to allow an HHFT to exceed 40 mph. The ‘flammable liquid’ characterization is included in the actual proposed language for §174.310(a)(3)(i).

PHMSA has included 10 specific questions about their proposed speed rules and an additional 5 about break design issues.

Tank Car Design

In this NPRM PHMSA is proposing the specification {§179.202} for a new hazardous material tank car for flammable liquid service; the DOT 117. In addition PHMSA is also defining performance requirements for alternatives to the DOT 117 specification {§179.202-11} that would provide equivalent levels of protections; such cars would receive the DOT 117P designation. All new railcars for flammable service constructed after October 1, 2015 would be constructed to the new standards.

There are two alternatives to the DOT 117 design that PHMSA is considering in this NPRM; the AAR 2014 recommended car and the Enhanced Jacketed CP-1232. PHMSA includes a detailed discussion of the pros and cons of the three designs. The two alternative designs are (according to the PHMSA discussions) strong improvements over the current DOT 111 cars but not quite as effective as the DOT 117 design. They are being considered because of their lower cost and PHMSA is required by law to consider cost effective alternatives.

DOT 111 Phase Out

It is readily apparent that the current fleet of DOT 111 tank cars does not meet the performance standards for the DOT 117P rail cars. This NPRM provides phase out dates for the continued use of DOT 111 cars in flammable service and provides a discussion of the refit requirements that would allow current DOT 111 cars to be converted to DOT 117P performance standards.

The following table outlines the phase out periods for the current DOT 111 fleet in HHFT service. Those cars would still be acceptable for flammable liquid transportation in non-HHFT trains.

Packing Group	Not authorized for HHFT after	CFR Ref
I	10-1-2017	§173.243
II	10-1-2018	§173.242
III	10-1-2020	§173.241

This will still potentially effect shippers of flammable liquids other than crude oil and ethanol since the shipper has no idea what train the car will be attached to in transit. Since an HHFT is not necessarily a ‘unit train’ carrying just one type commodity, flammable liquids other than crude oil or ethanol could be carried on an HHFT and DOT 111 cars in that service would not be allowed under the proposed language.

PHMSA proposes 11 questions concerning the use and conversion of the existing rail car fleet.

Public Comments

PHMSA is soliciting public comments on specific questions posed in the NPRM and on the proposed rule in general. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2012-0082). Comments should be submitted by September 30^th, 2014.

EPA RMP RFI Published

Earlier this week the Environmental Protection Agency’s request for information (RFI) for potential improvements to their Risk Management Program (RMP) was published in the Federal Register (79 FR 44603-44633). The lengthy document marks the official beginning of the process to revise the RMP regulations. It was initiated as part of the response of the EPA to President Obama’s Executive order on Improving the Safety and Security of Chemical Facilities (EO 13650).

The RMP-RFI identifies various areas of the RMP program that might be changed in the rulemaking process. At this point in the rulemaking process EPA has not identified any specific rule changes. Rather it has identified a number of areas of potential change along with a brief look at some of the alternatives that might be considered as part of the rulemaking process. It is seeking to establish a more form dialog with the public and the regulated community about how these potential changes could be most effectively implanted.

OSHA RFI Overlap

OSHA was required to publish their RFI for their chemical safety program, the Process Safety Management (PSM) program, much earlier in the EO 13650 process. Since both of these regulatory programs look at chemical safety issues (EPA from a protection of the community perspective and OSHA from a protection of the worker point of view) there is a certain amount of overlap in the two programs. This means that there will likely be overlaps in the program improvement process as well.

The EPA document identifies seven areas where responses to the OSHA RFI may be applicable to future changes in the RMP program. They include:

• Update the List of Regulated Substances;

• Additional Risk Management Program Elements;

• Define and Require Evaluation of Updates to Applicable Recognized and Generally Accepted Good Engineering Practices;

• Extend Mechanical Integrity Requirements To Cover Any Safety-Critical Equipment

• Require Owners and Operators To Manage Organizational Changes;

• Require Third-Party Compliance Audits; and

• Effects of OSHA PSM Coverage on RMP Applicability

RMP Specific Areas of Interest

In addition to these seven areas that are at least partially addressed in the earlier OSHA PSM-RFI, there are eleven areas where EPA is seeking public and industry input on potential changes to the RMP regulations. They are:

• Safer Technology and Alternatives Analysis;

• Emergency Drills To Test a Source's Emergency Response Program or Plan;

• Automated Detection and Monitoring for Releases of Regulated Substances;

• Additional Stationary Source Location Requirements;

• Compliance With Emergency Response Program Requirements in Coordination With Local Responders;

• Incident Investigation and Accident History Requirements;

• Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small Vessels Stored Together;

• Public Disclosure of Information To Promote Regulatory Compliance and Improve Community Understanding of Chemical Risks;

• Threshold Quantities and Off-Site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure Guideline Level Toxicity Values;

• Program 3 NAICS Codes Based on RMP Accident History Data; and

• The “Safety Case” Regulatory Model

Public Comments

The EPA is soliciting public comments on this RFI. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OEM-2014-0328). Comments should be submitted by October 29^th, 2014.

Senate Homeland Security Committee Rewrites and Adopts HR 4007

On Wednesday the Senate Homeland Security and Governmental Affairs Committee marked up and adopted HR 4007, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (NOTE: That is a name change). Substitute language was offered by Chairman Carper (D,DE) and Ranking Member Coburn (R,OK) and it was subsequently modified. The new language was adopted by a voice vote with Sen. Senator Baldwin (D,WI) voting no.

Changes

Most news reports have identified only two changes to the bill; a new expedited approval program for Tier 3 and Tier 4 facilities and an expansion of the whistleblower protections. These were the two really major changes (and will be discussed in more detail in a subsequent post), but the substitute language was a major re-write of the bill passed by the House. Most of the changes were language and formatting changes (this version does read cleaner), but there were other changes that will significantly change the Department’s actions resulting from this modified bill.

The changes include:

• Specifically allows the Secretary to suggest improvements to an alternative security plan to allow its approval {§2102(c)(2)(A)(ii)};

• Specifically authorizes the use of contractors (nongovernment personnel) to support the audit and inspection program {§2102(d)(1)(C)};

• Specifically authorizes the use of nondepartment personnel to conduct audits and inspection (EPA-RMP and/or OSHA-PSM presumably) {§2102(d)(1)(C)};

• Limits site security plan approval authority to DHS personnel {§2102(d)(1)(D)(iii)};

• Replaces requirement of nongovernment inspectors to have a Secret security clearance with the possession of a CVI certificate {§2102(d)(1)(e)};

• In two places where ‘consultation’ is required adds requirement for consulting with ‘public and private labor organizations’ {§2102(e)(1) and §2109};

• Adds a requirement for semi-annual reports to Congress about retiering and removal of facilities from CFATS program {§2102(e)(4)};

• Removes phrase ‘if such information may not be disclosed pursuant to any State or local law’ from paragraph about sharing with States and local governments {§2103(b)};

• Removes requirement to share information through ‘Homeland Security Information Network or the Homeland Secure Data Network’ {§2103(c)};

• Added specific exemption from disclosure under the Freedom of Information Act (5 USC 552) {§2103(e)};

• Expanded ‘Civil Penalties’ section to include ‘Civil Enforcement’ activities {§2104};

• Added ‘Non-reporting chemical facilities of interest’ under Civil Penalties {§2104(b)};

• Specifically limits rights of enforcement action under the program to the Secretary of DHS {§2104(d)};

• Specifically allows that “each existing CFATS regulation shall remain in effect unless the Secretary amends, consolidates, or repeals the regulation” {§2107(b)};

• Gives Secretary 30 days to “repeal any existing CFATS regulation that the Secretary determines is duplicative of, or conflicts with, this title” {§2107(b)(2};

• Lowers maximum number of employees to 100 at facility and adds ‘small business concern’ (15 USC 632 for definition) to definition of Small Covered Facility {§2108(a)};

• Expands assistance that may be provided to Small Covered Facilities to include “cybersecurity, recordkeeping, and reporting procedures” {§2108(b)};

• Specifically repeals Section 550 upon effective date of this bill {§4(b)}; and

• Sets 4 year termination of program {§5};

In addition to the above changes there were three things that were specifically removed from the bill:

• References to ‘Security Screening Coordination Office’ {Old §2101(d)(3)(C)};

• The rail transit exemption language {Old §2105(c)}; and

• The entire spending authorization section {Old §2110}.

Security Plan Suggestions

One of the problems that has plagued the enforcement of the current CFATS regulations is the interpretation that the prohibition against requiring specific security measures for approval of site security plans also applied to DHS providing suggestions to facilities about how to get their programs within compliance. Some inspectors have been more aggressive than others in limiting their suggestions to avoid the appearance of requiring a security measure and this makes it harder for facilities to know what changes need to be made to get their SSP authorized.

The language of {§2102(c)(2)(A)(ii)} will certainly make this clearer for facilities submitting alternative security plans (ASP) and I think that most inspectors (and inspectees) will assume that it is okay for an inspector to let a facility know what types of things have been used at other facilities to respond to a specific security situation.

Consultation with Labor Organizations

The language of §2102(e)(1) and §2109 could have only been added in the Democrat controlled Senate. Having said that, since the relationship with the labor organizations is only consultative, this language should not raise any significant ire in the Republican controlled House. There were lots of other labor inspired additions that could have been added to the bill that could have interfered with its adoption by the House.

Moving Forward

The earlier in September that this bill comes to the floor of the Senate for a vote (which will almost certainly have bipartisan support) the better the bill’s chances of getting through Conference before the November elections.