On July 13, 2016, the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”), in coordination with the Federal Railroad Administration (“FRA”), issued a Notice of Proposed Rulemaking (“NOPR”) detailing its proposed revisions to the Hazardous Materials regulations (“HMRs”). The NOPR is intended to improve oil spill response readiness and mitigate effects of rail incidents involving petroleum oil and certain high-hazard flammable trains (“HHFTs”). Specifically, the NOPR proposes to (1) expand the applicability of comprehensive oil spill response plans (“OSRPs”); (2) clarify and add new requirements for comprehensive OSRPs; (3) introduce requirements for railroads to share information with state and tribal emergency response commissions (“SERCs” and “TERCs”, respectively); and (4) provide an alternative test method for determining the initial boiling point of a flammable liquid.
The NOPR proposes additional, and potentially costly, requirements for the transport of crude oil by rail. HHFTs are railroads transporting either a single train containing 20 or more tank cars loaded with liquid petroleum oil in a continuous block, or a single train containing 35 or more tank cars loaded with liquid petroleum oil throughout the train consist. Specifically, these requirements include, but are not limited to: (1) the explicit approval of OSRPs by the FRA prior to the transport of oil; (2) more onerous spill response planning; and (3) periodic information sharing with state designated agencies. The NOPR also proposes changes that intend to clarify the requirements for adequate OSRPs and provides examples as guidance for compliance with regulations.
The expanded requirements would likely impose substantial costs and burden on railroads, which could increase the price of transport by rail, cause delays and/or limit the availability of crude oil transport by rail.
The proposed changes in the NOPR would work in conjunction with the requirements adopted in HM-251, the final rule regarding enhanced tank car standards and operational controls for HHFTs, issued by PHMSA on May 8, 2015.
Applicability and Requirements of OSRPs
The current HMRs require comprehensive written plans for the transportation of oil in a quantity greater than 1,000 barrels or 42,000 gallons per package. The regulations also require the preparation of “basic plans”, or spill response plans that do not include certain additional measures included in comprehensive OSRPs, for containers with a capacity of 3,500 gallons or more carrying petroleum oil. The NOPR notes however, that the approximate capacity of a rail car carrying crude oil is only 30,000 gallons. Accordingly, PHMSA’s regulations do not currently require that these railroads prepare comprehensive OSRPs, though basic OSRPs are required for most, if not all, tank car shipments of petroleum oil.
The NOPR thus proposes to require that all HHFTs, in addition to rail cars transporting greater than 42,000 gallons per package, develop comprehensive OSRPs. The NOPR also proposes changes and additions to existing requirements for comprehensive OSRPs. For example, the NOPR proposes that railroads:
- establish response zones to ensure the availability of personnel and equipment in different geographic route segments;
- include a checklist of necessary notifications, contact information and necessary information to clarify communication procedures;
- certify and document that employees have been trained to carry out responsibilities and that equipment testing meets the manufacturer’s minimum requirements;
- describe activities and responsibilities of railroad personnel prior to arrival of the qualified individual and of the qualified individual and procedures coordinating their actions with the Federal On-Scene Coordinator;
- review OSRPs internally at least every 5 years, when new or different conditions or information changes within the plan, or after a discharge requiring plan activation occurs; and
- obtain explicit approval of their OSRP from the FRA and respond to any deficiencies identified by the FRA.
Notably, the NOPR prohibits the transportation of oil by railroads subject to OSRPs unless the requirements for submission, review and approval of the OSRP are met and the railroad is operating in compliance with the plan. The NOPR will however allow railroads to temporarily continue to operate without plan approval, provided that the plan has been submitted to the FRA and the railroad submits a certification to the FRA that the railroad has obtained, through contract or other approved means, the necessary personnel and equipment to respond to a worst-case discharge or substantial threat of such a discharge.
Information Sharing for Railroads
The NOPR proposes to require railroads to share HHFT information with SERCs and TERCs, with the goal of improving community preparedness for potential accidents. This proposed change is specifically in response to the Fixing America’s Surface Transportation Act of 2015 (“FAST Act”), which President Obama signed into law on December 4, 2015. The NOPR addresses the requirement for advanced notification of HHFTs to SERCs and TERCs, or other appropriate state designated entities, and proposes to require that railroads provide the notification on a monthly basis. Further, the NOPR proposes that a railroad operating a train subject to the comprehensive OSRP requirements would need to provide the relevant SERCs, TERCs, or other appropriate state agencies with contact information for qualified individuals and the description of response zones.
Testing for Initial Boiling Points of Flammable Liquids
To provide for flexibility and enhanced safety, the NOPR also proposes to incorporate by reference the industry standard, or ASTM D7900, as an alternative testing method for initial boiling points. Under PHMSA’s regulations, an offeror is responsible for ensuring that the proper hazard class, packing group, and shipping name are assigned to a particular material, which requires the offeror to test the initial boiling point for a flammable liquid. An offeror is any person who performs or is responsible for performing any pre-transportation function required by the HMR or who tenders or makes the hazardous material available to a carrier for transportation in commerce. Currently, the requirements for initial boiling point tests authorized by PHMSA do not align with industry practice.
The NOPR is available for review here. Comments will be due 60 days following publication in the Federal Register.
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