Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains
Notice of proposed rulemaking (NPRM).
CFR Part: "49 CFR Parts 130, 171, 173, and 174"
RIN Number: "RIN 2137-AF08"
Citation: "81 FR 50068"
Document Number: "Docket No. PHMSA-2014-0105 (HM-251B)"
Page Number: "50068"
"Proposed Rules"
SUMMARY: PHMSA, in consultation with the
EFFECTIVE DATE: Comments must be received by
ADDRESSES: You may submit comments identified by the docket number, PHMSA-2014-0105 (HM-251B), by any of the following methods:
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* Mail: Docket Management System;
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SUPPLEMENTARY INFORMATION:
Abbreviations and Terms
AAR
ACP Area Contingency Plan
ANPRM Advance Notice of Proposed Rulemaking
CDT Central Daylight Time
CFR Code of Federal Regulations
Crude Oil Petroleum crude oil
CST Central Standard Time
CWA Clean Water Act (See Federal Water Pollution Control Act)
EDT Eastern Daylight Time
E.O. Executive Order
EPCRA Emergency Planning and Community Right-to-Know Act
ESA Environmentally Sensitive/Significant Area (See Endangered Species Act)
EST Eastern Standard Time
FAST Fixing America's Surface Transportation Act
FEMA
FRA
FWPCA Federal Water Pollution Control Act (See Clean Water Act)
HHFT High Hazard Flammable Train
HMR Hazardous Materials Regulations (See 49 CFR parts 171-180)
HMT Hazardous Materials Table (See 49 CFR 172.101)
ICP Integrated Contingency Plan
LEPC Local Emergency Planning Committee
MDT Mountain Daylight Time
NCP National Contingency Plan
NIMS National Incident Management System
NPRM Notice of Proposed Rulemaking
OPA 90 Oil Pollution Act of 1990
OSC On-Scene Coordinator
OSRP Oil Spill Response Plan
PREP National Preparedness for Response Exercise Program
RCP Regional Contingency Plan
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RP Recommended Practice
TRANSCAER Transportation Community Awareness and Emergency Response
TSA
U.S.C. United States Code
USCG United States Coast Guard
Table of Contents
I. Executive Summary
A. Oil Spill Response Plans
B. Information Sharing
C. Initial Boiling Point Test
II. Background
A. Current Oil Spill Response Requirements
B. Advanced Notice of Proposed Rulemaking
C. Summary of Proposed Oil Spill Response Requirements
D. Related Actions
E. HHFT Information Sharing Notification
F. Security and Confidentiality for HHFT Information Sharing Notification
G. Initial Boiling Point Test
III. Recent Spill Events
IV. National Transportation Safety Board Safety Recommendations
V. Summary and Discussion of Public Comments on Oil Spill Response Plans
A. Overview of Comprehensive Oil Spill Response Plans
B. Plan Scope/Threshold of Comprehensive Oil Spill Response Plans
C. Contents of Comprehensive Oil Spill Response Plans
D. Approval of Comprehensive Oil Spill Response Plans
E. Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans
F. Comprehensive Oil Spill Response Plan Costs
G. Voluntary Actions
VI. Incorporated by Reference
VII. Section-by-Section Review
VIII. Regulatory Review and Notices
A. Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures
B. Unfunded Mandates Reform Act
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures
F. Paperwork Reduction Act
G. Environmental Assessment
H. Privacy Act
I.
J. Regulation Identifier Number (RIN)
K. Executive Order 13211
IX. List of Subjects
I. Executive Summary
The Pipeline and Hazardous Materials Safety Administration (PHMSA), in coordination with the
The proposals in this NPRM work in conjunction with the requirements adopted in the final rule HM-251, "Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains" (80 FR 26643;
PHMSA discusses the proposed requirements further throughout this NPRM and seeks comments on the questions in the sections, as well as on all aspects of this proposal and its supporting analysis. PHMSA consolidates questions related to the proposed requirements for oil spill response plans in Section II, Subsection C ("Summary of Proposed Oil Spill Response Plan Requirements)" of this rulemaking. PHMSA consolidates the questions related to information sharing in Section VII ("Section-by-Section Review") under the discussion of
Expansion in domestic oil production relative to the 2000s has resulted in a large volume of crude oil being transported to refineries and other transport-related facilities throughout the country. /1/ With the expectation of continued domestic production, rail transportation remains a flexible alternative to transportation by pipelines or vessels, which have historically delivered the vast majority of crude oil to
FOOTNOTE 1 See Memorandum of Understanding (MOU) between the Secretary of Transportation and the Administrator of the
FOOTNOTE 2 See
FOOTNOTE 3 See also "Refinery receipts of crude oil by rail, truck, and barge continue to increase" http://www.eia.gov/todayinenergy/detail.cfm?id=12131. END FOOTNOTE
FOOTNOTE 4 http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_NUS-NUS_MBBL&f=M. END FOOTNOTE
FOOTNOTE 5 See 33 U.S.C. 1321(j)(5)(C) and
This rulemaking addresses issues related to preparedness and planning for the potential of train accidents involving the discharge of flammable liquid energy products. Specifically, this NPRM proposes to: (1) Expand the applicability of comprehensive oil spill response plans to include any single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train transporting 35 or more loaded tank cars of liquid petroleum oil throughout the train consist; (2) clarify and add new requirements for comprehensive oil spill response plans; (3) require railroads to share information with state and tribal emergency response commissions (i.e., SERCs and TERCs) for high-hazard flammable trains to improve community preparedness for potential accidents; and (4) provide an alternative test method for determining the initial boiling point of a flammable liquid. The proposals in this rulemaking are shaped by public comments,
Table 1--10 Year and Annualized Costs and Benefits by Stand-Alone Regulatory Proposal Provision Benefits (7%) Costs (7%) Qualitative Breakeven Oil Spill . Improved Cost-effective if 10-Year: Response Planning Communication/ this requirement$18,051,343 . and Response Defined Command reduces the Annualized: Structure may consequences of oil$2,570,105 . improve response. spills by 4.1%. . Pre-identified Access to Equipment and Staging of Appropriate Equipment for Response Zones. . Trained Responders. Information . Improved Cost-effective if 10-Year: Sharing Communication. this requirement$3,650,832 . . Enhanced reduces the Annualized: Preparedness. consequences of oil$519,796 . spills by 0.8%. IBR of ASTM D7900 . Regulatory No Cost Estimated. Flexibility. . Enhanced Accuracy in Packing Group Assignments. Total Cost-effective if 10-Year: this requirement$21,702,175 reduces the Annualized: consequences of oil$3,089,901 . spills by 4.9%.
A. Oil Spill Response Plans
The Oil Pollution Act of 1990 amended the Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA) at 33 U.S.C. 1321, by adding oil spill response planning requirements for "facilities" that handle oil. The CWA requires that owners and operators of onshore facilities prepare and submit oil spill response plans for facilities that "could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone." /6/ The CWA applies to railroads or "rolling stock," which is included in the definition of "onshore facility." /7/
FOOTNOTE 6 33 U.S.C. 1321(j)(5)(C). END FOOTNOTE
FOOTNOTE 7 "Onshore facility" means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within
The Department of Transportation's oil spill planning requirements for rolling stock and motor carriers are found at 49 CFR part 130. Part 130 currently requires "comprehensive written plans" that comply with the CWA for the transportation of oil in a quantity greater than 1,000 barrels or 42,000 gallons per package. The approximate capacity of a rail car carrying crude oil is 30,000 gallons. Therefore, part 130 does not currently require that railroads prepare comprehensive written plans. Part 130 also includes preparation of "basic plans" for containers with a capacity of 3,500 gallons or more carrying petroleum oil. Therefore, basic oil spill response plans are currently required for most, if not all, tank car shipments of petroleum oil. This rulemaking does not propose changes to the basic plan requirements because there is no justification for such changes at this time.
On
FOOTNOTE 8 http://www.phmsa.dot.gov/PHMSA/Key_Audiences/Hazmat_Safety_Community/Regulations/NTSB_Safety_Recommendations/Rail/ci.R-14-5,Hazmat.print. END FOOTNOTE
FOOTNOTE 9 http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-14-002. END FOOTNOTE
FOOTNOTE 10 For the purposes of this discussion, train consist is considered the rolling stock, exclusive of the locomotive, making up a train. END FOOTNOTE
This rulemaking addresses the risk of increased shipments of large quantities of petroleum oil being transported by rail and proposes to modernize and clarify the requirements for comprehensive OSRPs and more closely align these requirements with the statutory requirements of the CWA. This rulemaking proposes to expand the applicability for comprehensive OSRPs to railroads transporting 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 tanks cars loaded with liquid petroleum oil throughout the train consist. This quantity aligns with the definition of a high-hazard flammable train in the HHFT Final Rule, which added new requirements and operational controls for these trains. The proposed changes respond to commenter requests for more specificity in plan requirements; provide a better parallel to other federal oil spill response plan regulations promulgated under the CWA; address the needs identified by first responders in the "Crude Oil Rail Emergency Response Lessons Learned Roundtable Report"; and provide requirements to address the challenges identified through an analysis of recent spill events. /11/ The changes also propose to leverage the geographic information provided through the expanded routing analysis requirements of the HHFT Final Rule by applying a geographic component to the response plan structure. Railroads would divide their routes into "response zones" and connect notification procedures and available response resources to the specific geographic route segments that comprise the response zones. The proposed changes clarify the railroad's role in response activities and the communication procedures needed to notify Federal, State, and local agencies. A summary of the Clean Water Act statutory language, the current regulations of 49 CFR part 130, and the proposed changes to the comprehensive plan requirements under this rulemaking are further described in Section II, Subsection C ("Summary of Proposed Oil Spill Response Requirements").
FOOTNOTE 11 http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse. END FOOTNOTE
B. Information Sharing
Federal hazardous materials transportation law (49 U.S.C. 5101-5128) authorizes the Secretary to "prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce." The Secretary delegated this authority to PHMSA under 49 CFR 1.97(b). As such, PHMSA is responsible for overseeing a hazardous materials safety program that minimizes the risks to life and property inherent in transportation in commerce. The HMR include operational requirements applicable to each mode of transportation. On a yearly basis, the HMR provide safety and security requirements for the transportation of more than 2.5 billion tons of hazardous materials (hazmat), valued at about
FOOTNOTE 12 2012
The Secretary also has authority over all areas of railroad transportation safety (Federal railroad safety laws, principally 49 U.S.C. chapters 201-213); this authority is delegated to FRA under 49 CFR 1.89. Pursuant to its statutory authority, FRA promulgates and enforces a comprehensive regulatory program (49 CFR parts 200-244) and the agency inspects and audits railroads, tank car facilities, and hazardous material offerors for compliance with both FRA's regulations and the HMR. FRA also has an extensive, well-established research and development program to improve all areas of railroad safety, including hazardous materials transportation. As a result of the shared role in the safe and secure transportation of hazardous materials by rail, PHMSA and FRA work closely when considering regulatory changes, and the agencies take a system-wide, comprehensive approach consistent with the risks posed by the bulk transport of hazardous materials by rail.
On
FOOTNOTE 13 http://www.dot.gov/briefing-room/emergency-order. END FOOTNOTE
On
FOOTNOTE 14 A discussion regarding public interest and feedback can be found later in the preamble in the section on "HHFT Rulemaking and Response." END FOOTNOTE
Table 2 below describes, generally, how this proposed rule would address routing and information sharing issues, as compared to the Order (which remains in effect), the regulatory provisions implemented by the HHFT final rule, and the provisions of the FAST Act. PHMSA discusses the information sharing proposals further in the section-by-section analysis for
Table 2--Information Sharing for Emergency Responders Category Emergency HHFT final FAST Act OSRP NPRM order and HHFT rule (advanced (information NPRM (routing) notification) sharing) Who is subject? All railroads All railroads Class I All railroads transporting transporting railroads transporting 1,000,000 HHFT (20 cars transporting HHFT (20 cars gallons or in a block, 35 HHFT (20 cars in a block, 35 more of Bakken in consist in a block, 35 in consist crude oil in a carrying ANY in consist carrying ANY single train Class 3 carrying ANY Class 3 flammable Class 3 flammable liquid) flammable liquid). liquid) Who must the Railroads Railroads Railroads must Railroads must railroads notify? notify SERCs provide point notify SERCs notify SERCs, or other of contact who share TERCs. or appropriate (POC) information other state- information to with other appropriate designated state and/or state and state entities. regional local public designated Provide the fusion centers agencies upon entities who notification and state, request, as share to FRA upon local, and appropriate information request tribal with other officials in state and jurisdictions local public that may be agencies upon affected by a request, as rail carrier's appropriate. routing Railroads decisions and provide the who directly notification contact the to DOT upon railroad to request. discuss routing decisions What type of Active -- Passive -- Active-- Active -- notification? Information Information on Information Propose the must routing and must active continuously risk analysis continuously information be supplied to will be be supplied to sharing these entities discussed upon these entities requirements request with in the Order state, local, with certain and tribal changes officials in described jurisdictions below. that may be affected by a rail carrier's routing decisions When/how often? Update Routing and Update the Monthly notifications risk analysis notifications notification when Bakken is performed prior to or crude oil annually making any certification traffic material of no change materially changes to any to ensure that changes within volumes or changes to a particular frequencies of frequency or county or HHFTs volume are state (by 25% traveling clearly or more) through a communicated. county What to include A reasonable Information on A reasonable A reasonable in the estimate of results of estimate of estimate of notification? the number of routing and the number of the number of affected risk analysis implicated HHFTs that are trains that can be trains that expected to are expected discussed upon are expected travel, per to travel, per request. This to travel, per week, through week, through includes the week, through each county each county volume of each county within the within the hazardous within the state. state material applicable transported, state rail traffic density, trip length, and route among other factors The routes Information on Identification The routes over which the results of of the routes over which the affected routing and over which affected trains will be risk analysis such liquid trains will be transported can be will be transported. discussed upon transported request. This includes routes over which affected trains are transported A description Compile under Identification A description of the current and a of the petroleum requirements description of materials crude oil and in subparts C the Class 3 shipped and applicable and G of part flammable applicable emergency 172 liquid being emergency response transported on response information such trains information required by and applicable required by subparts C and emergency subparts C and G of part 172 response G of part 172 of this information, of this subchapter as required by subchapter. regulation At least one A point of A point of At least one point of contact contact at the point of contact at the (including the Class I contact at the railroad name, title, railroad railroad (including phone number responsible (including name, title, and e-mail for serving as name, title, phone number address) who the point of phone number and address) can provide contact for and address) responsible fusion centers State for the SERC, for serving as and consult emergency TERC, and the point of with other response relevant contact for State, local centers and emergency the State and tribal local responders Emergency officials (may emergency related to the Response include responders railroad's Commission and SERCs/TERCs) related to the transportation relevant about the Class I of affected emergency results of the railroad's trains. responders routing and transportation related to the risk analysis of such liquid railroad's (includes transportation information on of affected 27 factors) trains upon request Spill Response N/A N/A N/A For petroleum Plan Info oil trains subject to Comprehensive Oil Spill Response Plan, the contact info for the qualified individuals and description of response zones compiled under part 130 must also be included.
C. Initial Boiling Point Test
An offeror's responsibility to accurately classify and describe a hazardous material is a key requirement under the HMR. In accordance with
In 2014, the rail and oil industry, with PHMSA's input, developed a recommended practice (RP) designed to improve crude oil rail safety through proper classification and loading practices. This effort was led by API and resulted in the development of an
The IBP test and practice recommended by industry (ASTM D7900) is not currently aligned with the testing requirements authorized in the HMR, forcing shippers to continue to use the testing methods authorized in
II. Background
A. Current Oil Spill Response Requirements
The Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 (OPA 90), directs the President, at
FOOTNOTE 15 CWA SEC 311(j)(1)(C). See also 33 U.S.C. 1321(j)(5); CWA SEC (j)(5), respectively. END FOOTNOTE
Under 33 U.S.C. 1321(j)(5), an "owner or operator" of "[a]n onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, . . ." must "prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst-case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance." Under 33 U.S.C. 1321(j)(5)(D), if a response plan is required then it must have specific elements, including submission and review.
On
The terms "transportation related facility" and "nontransportation related facility" are defined in a
FOOTNOTE 16 36 FR 24080. END FOOTNOTE
On
Part 130 requires a basic OSRP for oil shipments in a packaging having a capacity of 3,500 gallons or more, which requires the preparation of a written plan that (1) "sets forth the manner of response to discharges . . ." (2) "takes into account the maximum potential discharge of the contents from the packaging," (3) "identifies private personnel and equipment available to respond to a discharge," and (4) "identifies the appropriate persons and agencies (including their telephone numbers) to be contacted in regard to such a discharge and its handling, including the National Response Center." The requirements for a basic response plan were issued as a "containment rule pursuant to
FOOTNOTE 17 61 FR 30537 END FOOTNOTE
The regulations at 49 CFR part 130 prohibit a person from transporting oil in a package containing more than 42,000 gallons (1,000 barrels) unless that person has a current comprehensive OSRP that: (1) Conforms to all requirements for a basic OSRP, (2) is consistent with the National Contingency Plan and Area Contingency Plans, (3) identifies the qualified individual with authority to implement removal and facilitate communication between federal officials and spill response personnel, (4) identifies and ensures by contract or other means response equipment and personnel to remove a worst-case discharge, (5) describes training, equipment testing, and drills, and (6) is submitted to FRA. The regulations also require motor carriers to submit plans to FHWA. However, motor carriers do not have packages capable of meeting the threshold for a comprehensive plan. The comprehensive OSRP addresses minimum requirements for a plan specified by 33 U.S.C. 1321(j)(5)(D). In the 1996 final rule, a nationwide, regional or other generic plan is acceptable. The plan holder was not required to account for different response locations.
Table 3 outlines the specific differences between a basic and comprehensive OSRP. The shaded rows of the table indicate requirements that are not part of the basic OSRP, but are included in the comprehensive OSRP requirements in 49 CFR 131(b).
Table 3--Comparison of Current Basic and Comprehensive OSRPs by Requirement Category Requirement Type of OSRP Basic Comprehensive Preparation Sets forth the manner of Yes Yes. response to a discharge. Preparation Accounts for the maximum Yes Yes. potential discharge of the packaging. Personnel/Equipment Identifies private personnel Yes Yes. and equipment available for response. Personnel/ Identifies appropriate Yes Yes. Coordination persons and agencies (including telephone numbers) to be contacted, including the National Response Center (NRC). Documentation Is kept on file at the Yes Yes. principal place of business and at the dispatcher's office. Coordination Reflects the requirements of No Yes. the National Contingency Plan (40 CFR part 300) and Area Contingency Plans. Personnel/ Identifies the qualified No Yes. Coordination individual with full authority to implement removal actions, and requires immediate communications between the individual and the appropriate Federal official and the persons providing spill response personnel and equipment. Personnel/ Identifies and ensures by No Yes. Equipment/ contract or other means the Coordination availability of, private personnel, and the equipment necessary to remove, to the maximum extent practicable, a worst-case discharge (including that resulting from fire or explosion) and to mitigate or prevent a substantial threat of such a discharge. Training Describes the training, No Yes. equipment, testing, periodic unannounced drills, and response actions of personnel, to be carried out under the plan to ensure safety and to mitigate or prevent discharge or the substantial threat of such a discharge. Documentation Is submitted (and resubmitted No Yes. in the event of a significant change) to the Administrator of FRA.
B. Advanced Notice of Proposed Rulemaking
On
FOOTNOTE 18 The 2014
In setting the current OSRP threshold quantities, RSPA considered a 1,000,000-gallon threshold that would apply to shipments, rather than individual packages. Specifically, RSPA stated,
Conversely, the 1,000,000-gallon threshold adopted by
During the
FOOTNOTE 19 61 FR 30537. END FOOTNOTE
As discussed in the
FOOTNOTE 20 The terms comprehensive plan, oil spill response plan (OSRP) and facility response plan (FRP) are often used interchangeably. END FOOTNOTE
PHMSA recognizes that a single tank car is not likely to hold 42,000 gallons of crude oil, but the increasing reliance on HHFTs increases the risk that more than one tank car could rupture during a derailment and result in the discharge of the contents of more than one rail car. RSPA either did not consider this risk or did not consider it significant when it established the current threshold. In the ANPRM, PHMSA sought comments on what impact changing the applicability threshold would have on current business practices for shipping crude oil by rail. The ANPRM also explained that since the typical capacity for a rail tank car used in the transport of crude oil is around 30,000 gallons, a 1,000,000-gallon threshold for oil per train consist would translate to requiring a comprehensive OSRP for trains composed of approximately 35 cars of crude oil. PHMSA expected the business practices for HHFTs would result in train consists that often exceed 35 crude oil tank cars. The ANPRM also explained that a 42,000 gallon per train consist threshold would translate to requiring comprehensive OSRPs for trains composed of approximately two cars of crude oil.
Also in the ANPRM, PHMSA sought comments on nine questions to inform our understanding of adjusting the threshold quantities that would trigger comprehensive OSRP requirements for HHFTs of petroleum oil as well as adjusting the plan requirements. PHMSA requested that comments reference a specific portion of the ANPRM, explain the reason for any recommended change, include supporting data, and explain the source, methodology, and key assumptions of the supporting data.
The ANPRM described the consequences, including environmental impacts, of several recent HHFT derailments, including
C. Summary of Proposed Oil Spill Response Requirements
A summary of the Clean Water Act statutory language, the current regulations of 49 CFR part 130 for comprehensive plans, and the proposed changes to the comprehensive plan requirements under this rulemaking are further described in the Tables 4, 5, & 6 below.
Table 4--Applicability Comparison CWA statute Current regulatory Proposed changes to applicability for applicability for comprehensive plans comprehensive plans 33 U.S.C. 49 CFR Part 49 CFR Part 1321(j)(5)(A)(i)--The 130--Comprehensive plan 130--Restructures part President shall issue requirements include both 130 to include regulations which require the general elements for comprehensive oil spill an owner or operator of a the basic plan in response plans in subpart tank vessel or facility 130.31(a) and the C. described in subparagraph additional measures in Provides general (C) to prepare and submit 130.31(b) requirements for to the President a plan recordkeeping, plan for responding, to the format and information maximum extent about response structure practicable, to a to facilitate usability worst-case discharge, and and enforceability of to a substantial threat plan requirements. All of such a discharge, of proposed changes better oil or a hazardous align the requirements substance with other regulations for oil spill response plans under other federal agencies, including optional use of the Integrated Contingency Plan (ICP) format. 33 U.S.C. S. 130.31(b)(1)--42,000 S. 130.101--Expands the 1321(j)(5)(C)(iv)--An gallons of liquid oil in current applicability to onshore facility that, a single package include trains because of its location, transporting: could reasonably be . 42,000 gallons of expected to cause liquid oil in a single substantial harm to the package (current environment by applicability); OR discharging into or on . At least 20 cars of the navigable waters, liquid petroleum oil in a adjoining shorelines, or continuous block or 35 the exclusive economic cars of liquid petroleum zone oil in a consist.
Table 5--Plan Requirements Comparison Plan elements required by Current regulatory Proposed changes to CWA statute comprehensive comprehensive plan elements plan elements 33 U.S.C. S. 130.31(b)(2)--A S. 130.103--Requires 1321(j)(5)(D)(i)--A comprehensive plan must certification that the response plan must be be consistent with the plan is consistent with a consistent with the requirements of the list of specific NCP/ACP requirements of the National Contingency Plan requirements for "minimum National Contingency Plan and Area Contingency compliance," to clarify and Area Contingency Plans the elements of NCP/ACP Plans applicable to rail shipments. 33 U.S.C. S. 130.31(b)(3)--A SS 1321(j)(5)(D)(ii)--A comprehensive plan must 130.104-130.105--Requires response plan must identify the qualified identification of identify the qualified individual having full qualified individual for individual having full authority to implement each response zone in authority to implement removal actions, and quickly accessible removal actions, and requires immediate information summary. require immediate communications between Requires that the plan communications between that individual and the include a checklist of that individual and the appropriate federal necessary notifications, appropriate federal official and the persons contact information, and official and the persons providing spill response necessary information to providing personnel and personnel and equipment clarify communication equipment procedures. 33 U.S.C. S. 130.31(b)(4)--A S. S. 130.102 & 1321(j)(5)(D)(iii)--A comprehensive plan must 130.106--Includes the response plan must identify, and ensure by establishment of response identify, and ensure by contract or other means zones, to ensure the contract or other means the availability of, availability of personnel approved by the President private personnel and equipment in the availability of, (including address and different geographic private personnel and phone number), and the route segments. equipment necessary to equipment necessary to Demonstrate that the remove to the maximum remove, to the maximum response management extent practicable a extent practicable, a system uses the National worst-case discharge worst-case discharge Incident Management (including a discharge (including a discharge System (NIMS) for common resulting from fire or resulting from fire or terminology and has a explosion), and to explosion) and to manageable span of mitigate or prevent a mitigate or prevent a control, a clearly substantial threat of substantial threat of defined chain of command, such a discharge such a discharge and trained personnel to fill each position. Includes requirements to identify the organization, personnel, equipment, and deployment location thereof capable of removal and mitigation of a worst-case discharge. 33 U.S.C. S. 130.31(b)(5)--A S. 130.107--Requires 1321(j)(5)(D)(iv)--A comprehensive plan must certification and response plan must describe the training to documentation that describe the training to be carried out under the employees have been be carried out under the plan to ensure the safety trained in carrying out plan to ensure the safety of the facility and to their responsibilities of the facility and to mitigate or prevent the under the plan. mitigate or prevent the discharge discharge 33 U.S.C. S. 130.31(b)(5)--A S. 130.108--Requires 1321(j)(5)(D)(iv)--A comprehensive plan must description and response plan must describe the equipment certification that describe the equipment testing to be carried out equipment testing meets testing to be carried out under the plan the manufacturer's under the plan minimum requirements, which is equivalent to U.S. Coast Guard (USCG) requirements. 33 U.S.C. S. 130.31(b)(5)--A S. 130.108--Requires 1321(j)(5)(D)(iv)--A comprehensive plan must drills to be equivalent response plan must describe the periodic to the DOT PREP standard. describe the periodic unannounced drills to be PREP includes sections unannounced drills to be carried out under the for each agency regulated carried out under the plan under CWA. plan 33 U.S.C. S. 130.31(b)(5)--A S. 130.106--Requires a 1321(j)(5)(D)(iv)--A comprehensive plan must description of all of the response plan must describe the response following: describe the response actions of facility . Activities and actions of persons on the personnel, to be carried responsibilities of vessel or at the facility out under the plan to railroad personnel prior ensure the safety of the to arrival of Qualified facility and to mitigate Individual (QI) or prevent the discharge, . QI responsibilities and or the substantial threat actions of such a discharge . Procedures coordinating railroad/QI actions with the Federal On-Scene Coordinator 33 U.S.C. 49 CFR part 130 does not S. 130.109--Clarifies 1321(j)(5)(D)(v)--A specify clearly if or that plans should be response plan must be when the railroad must reviewed internally in updated periodically update a comprehensive full every 5 years at a plan minimum, when new or different conditions or information changes within the plan, or after a discharge requiring plan activation occurs. 33 U.S.C. S. 130.31(b)(6)--Is S. 130.109--Requires 1321(j)(5)(D)(vi)--A submitted, and plans to be resubmitted response plan must be resubmitted in the event to FRA in the event of resubmitted for approval of any significant new or different of each significant change, to the Federal operating conditions or change Railroad Administrator information that would (for tank cars) substantially affect the implementation of the plan. Provides examples of significant changes for clarity.
Table 6--Plan Approval Comparison Approval and review Current regulatory Proposed changes required by CWA statute requirement 33 U.S.C. 1321(j)(5)(E) -- S. 130.31(b)(6) --Is S. 130.111 --Requires With respect to any submitted, and explicit approval of plans response plan submitted resubmitted in the by FRA. under this paragraph for an event of any Specifies process for FRA onshore facility that, significant change, to notify railroads of any because of its location, to the Federal sections of alleged could reasonably be Railroad deficiencies in plan and expected to cause Administrator (for provides railroads the significant and substantial tank cars) opportunity to respond. harm to the environment by Clarifies railroads will discharging into or on the review plans five years navigable waters or from the date of last adjoining shorelines or the approval and resubmit plans exclusive economic zone, after significant changes. and with respect to each response plan submitted under this paragraph for a tank vessel, nontank vessel, or offshore facility, the President shall-- (i) promptly review such response plan; (ii) require amendments to any plan that does not meet the requirements of this paragraph; (iii) approve any plan that meets the requirements of this paragraph; (iv) review each plan periodically thereafter; and (v) in the case of a plan for a nontank vessel, consider any applicable State-mandated response plan in effect on August 9, 2004, and ensure consistency to the extent practicable 33 U.S.C. 1321(j)(5)(F) A S. 130.101 --Prohibits the tank vessel, nontank transportation of oil vessel, offshore facility, subject to comprehensive or onshore facility plans unless the required to prepare a requirements for response plan under this submission, review and subsection may not handle, approval in S. 130.111 are store, or transport oil met and the railroad is unless-- operating in compliance (i) in the case of a tank with the plan. vessel, nontank vessel, offshore facility, or onshore facility for which a response plan is reviewed by the President under subparagraph (E), the plan has been approved by the President; and (ii) the vessel or facility is operating in compliance with the plan. 33 U.S.C. 1321(j)(5)(G) -- S. 130.111 --Allows Notwithstanding railroads to temporarily subparagraph (E), the continue operating without President may authorize a plan approval, provided the tank vessel, nontank plan has been submitted to vessel, offshore facility, FRA and the railroad or onshore facility to submits a certification to operate without a response FRA that the railroad has plan approved under this obtained, through contract paragraph, until not later or other approved means, than 2 years after the date the necessary personnel and of the submission to the equipment to respond, to President of a plan for the the maximum extent tank vessel, nontank practicable, to a worst- vessel, or facility, if the case discharge or a owner or operator certifies substantial threat of such that the owner or operator a discharge. has ensured by contract or Requires that the other means approved by the certificate be signed by President the availability the qualified individual or of private personnel and an appropriate corporate equipment necessary to officer. respond, to the maximum extent practicable, to a worst-case discharge or a substantial threat of such a discharge
PHMSA solicits comment on the proposed oil spill response plan requirements in the following areas:
1. On ways to effectively provide regulatory flexibility to bona fide small entities that pose a lesser safety risk and may not be able to comply with the requirements of the proposed rule due to cost concerns, limited benefit, or practical considerations.
2. On whether the 12-hour response time is sufficient for all areas subject to the plan, or whether a shorter response time (e.g., 6-hours) is appropriate for certain areas (e.g. High Volume Areas) which pose an increased risk for higher consequences from a spill; on criteria to define such "High Volume Areas" where a shorter response time should be required, as well as whether the definition for "High Volume Area" in 49 CFR 194.5 (excluding pipeline diameter) captures this increased risk, or if there is other criteria which can be used to reasonably and consistently identify such areas for rail; on whether requiring response resources to be capable of arriving within 6 hours will lead to improvements in response, and for specific evidence of these improvements; and on whether the final rule should have a longer response time than 12 hours for spills for all other areas subject to the plan requirements in order to offset costs from requiring shorter response times for High Volume Areas.
3. On whether the proposed training requirements are sufficient, or whether the Qualified Individual should be trained to the Incident Commander level using the Incident Command System (ICS).
D. Related Actions
PHMSA and FRA have taken a comprehensive approach to responding to the risks posed by large quantities of flammable liquids by rail. The HHFT Final Rule outlines many of these actions under the Sections III ("Regulatory Actions Addressing Rail Safety") and IV ("Non-Regulatory Actions Addressing Rail Safety"). /21/ A brief summary of significant actions relating to response planning and information sharing are included in this document.
FOOTNOTE 21 See 80 FR 26654 and 80 FR 26657, respectively. END FOOTNOTE
1. Call to Action
On
In
FOOTNOTE 22 TTCI is wholly owned subsidiary of the
As a result of the call to action in 2014, the rail and oil industry, along with PHMSA's input, developed a RP designed to improve rail safety through the proper classification and loading of crude oil. This effort was led by the API and resulted in the development of an ANSI recognized recommend practice (see ANSI/API
2. Emergency Order
As noted in the Executive Summary above, on
FOOTNOTE 23 http://www.dot.gov/briefing-room/emergency-order. END FOOTNOTE
DOT subsequently issued a frequently asked questions document clarifying several aspects of the Order (e.g., the required level of specificity of the data to be shared, the duty of railroads to provide updated information to the SERCs and the railroad's ability to share the same data with state agencies other than the SERCs). See document number 0003 in Docket No. DOT-OST-2014-0067 and the more detailed discussion of the Order in the "HHFT Information Sharing Notification" section of this discussion.
3. Rulemaking Actions
On
The HHFT Final Rule defined High-Hazard Flammable Train as a continuous block of 20 or more tank cars in a single train or 35 or more cars dispersed through a train loaded with a Class 3 flammable liquid. This definition served as the applicable threshold of many of the requirements in the HHFT Final Rule and is the threshold at which, per the HHFT Final Rule, the route analysis and consultation requirements of
* State and/or regional fusion centers that have been established to coordinate with State, local, and tribal officials on security issues within the area encompassed by the rail carrier's rail system; /24/ and
FOOTNOTE 24 http://www.dhs.gov/fusion-center-locations-and-contact-information. END FOOTNOTE
* State, local, and tribal officials in jurisdictions that may be affected by a rail carrier's routing decisions and who have contacted the carrier regarding routing decisions.
4. Safety Advisories
Safety advisories are documents published by PHMSA and FRA in the
On
FOOTNOTE 25 See: http://www.gpo.gov/fdsys/pkg/FR-2015-04-23/pdf/2015-09436.pdf. END FOOTNOTE
PHMSA Notice 15-7 emphasized that the responsibility to provide accurate and timely information is a shared responsibility for all persons involved in the transportation of hazardous materials. This information includes, but is not limited to, identification and volume of the specific hazardous material; location of the hazardous material on the train; risks of fire and explosion; immediate precautions to be taken in the event of an incident; initial methods for handling spills or leaks in the absence of fire; and preliminary first aid measures. It is a shipper's responsibility to provide accurate emergency response information that is consistent with both the information provided on a shipping paper and the material being transported. Likewise, re-offerors of hazardous materials must ensure that this information can be verified to be accurate, particularly if the material is altered, mixed, or otherwise repackaged prior to being placed back into transportation. In addition, carriers must ensure that emergency response information is maintained appropriately, is accessible, and can be communicated immediately in the event of a hazardous materials incident. All of this information must be immediately available to any person who, as a representative of Federal, State, local or tribal governments (including a SERC), responds to an incident involving hazardous material or is conducting an investigation which involves a hazardous material.
On
5. Stakeholder Outreach
PHMSA and FRA have also taken specific actions to develop appropriate response outreach and training tools to mitigate the impact of future incidents. The following are some of PHMSA's actions related to emergency response and information sharing for rail crude oil incidents over the past year.
In
In
FOOTNOTE 26 See http://www.phmsa.dot.gov/ pv_obj_cache/pv_obj_id_0903D018579BF84E6914C0BB932607F5B3F50300/filename/Lessons_Learned_Roundtable_Report_FINAL_070114.pdf. END FOOTNOTE
While the "Lessons Learned Roundtable Report" was focused on public emergency responders, some of the key findings also addressed the railroads:
* All agencies involved in emergency response operations need to understand NIMS [National Incident Management System], their specific role within NIMS, and must have a representative assigned to the
* Pre-incident planning and communication with all organizations, specifically shippers and carriers (railroads), is essential to learn about the product(s) being transported and the availability of emergency response resources.
* Emergency responders are not fully aware of the response resources available from the railroads and other organizations (e.g., air monitoring capabilities). This information would be useful in pre-incident planning, preparedness, and response operations. In
PHMSA hosted a stakeholder meeting with hazardous materials response subject matter experts from public safety organizations, railroads, government, and industry to discuss the best practices for responding to a crude oil incident by rail. In coordination with the working group, PHMSA drafted the " Commodity Preparedness and Incident Management Reference Sheet." This document contains incident management best practices for emergency response operations, including a risk-based hazardous materials emergency response operational framework. The framework provides first responders with key planning, preparedness, and response principles to successfully manage a crude oil rail transportation incident. The document also assists fire and emergency services personnel in decision-making and developing an appropriate response strategy to an incident (i.e., defensive, offensive, or non-intervention strategies). /27/ In partnership with the
FOOTNOTE 27 This document has been widely distributed throughout the emergency response community and is also available on the PHMSA Operation Safe Delivery Web site at http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse. END FOOTNOTE
FOOTNOTE 28 See http://www.usfa.fema.gov/training/coffee_break/hazmat_index.html. END FOOTNOTE
In
FOOTNOTE 29 See http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse/TRIPR. END FOOTNOTE
In
In addition to PHMSA's efforts mentioned above, in
Also in
In
In addition to these sources of information described above, PHMSA provides resources to the emergency response community in many other forms. Some of the key resources provided by PHMSA include:
* Hazardous Materials Emergency Preparedness (HMEP) Grant Program: On an annual basis, PHMSA awards over
FOOTNOTE 30 http://www.phmsa.dot.gov/hazmat/grants. END FOOTNOTE
* Assistance for Local Emergency Response Training (ALERT) Grant: Additionally, in FY15 PHMSA will award its ALERT grant. This is a competitive grant opportunity using prior year recovery funds to a non-profit organization(s) that can provide direct or web-based hazardous materials training for volunteer or remote emergency responders. The priority for this grant will be emergency response activities for the transportation of crude oil, ethanol and other flammable liquids by rail. The anticipated award for this grant is
* Emergency Response Guidebook: This guidebook provides emergency responders with a go-to manual to help deal with hazardous materials incidents during the critical first 30 minutes. It is also available as a free mobile app. The Emergency Response Guidebook is available at: http://www.phmsa.dot.gov/hazmat/outreach-training/erg. /31/
FOOTNOTE 31 http://www.phmsa.dot.gov/hazmat/outreach-training/erg. END FOOTNOTE
*
FOOTNOTE 32 http://phmsa.dot.gov/hazmat/standards-rulemaking/hmic. END FOOTNOTE
* Outreach: PHMSA has a staff of highly trained individuals skilled in training known as the Hazardous Materials Safety Assistance Team (HMSAT). The HMSAT team is part of our field operations personnel and is available in all regions of
FOOTNOTE 33 http://www.phmsa.dot.gov/phmsa-ext/feedback/hmsatPresenterRequestForm.jsp. END FOOTNOTE
A myriad of other sources of information and support are available to State, local and tribal governments' emergency preparedness and response efforts, including other federal agencies, and industry groups. For example, the
Complementing the Federal Government's efforts, the railroad and shipping industries have also made efforts to improve crude oil by rail safety. API has built new partnerships between rail companies and oil producers. At the request of FRA, API is developing an outreach program to train first responders in HHFT derailment response throughout the
The railroad industry, hazardous materials shippers, and other organizations also provide emergency response assistance and training to communities through a variety of means, including the Transportation Community Awareness and Emergency Response (TRANSCAER(R)) program. The TRANSCAER program offers emergency response information, emergency planning assistance, and training to Local Emergency Planning Committees (LEPCs) under the AAR Circular OT-55-O protocol. AAR and API are working together to produce a crude oil by rail safety training video through their partnership with the TRANSCAER program.
The AAR Circular OT-55-O also outlines a procedure whereby local emergency response officials and emergency planning organizations may obtain a list of the types and volumes of hazardous materials that are transported through their communities. On
E. HHFT Information Sharing Notification
As previously discussed, on
FOOTNOTE 34 http://www.dot.gov/briefing-room/emergency-order. END FOOTNOTE
DOT subsequently issued a frequently asked questions document (FAQs) clarifying several aspects of the Order. /35/ The FAQs clarified that for purposes of the Order, "Bakken crude oil" is any crude oil tendered to railroads for transportation from any facility located within the
FOOTNOTE 35 See document number 0003 in Docket No. DOT-OST-2014-0067. END FOOTNOTE
Second, the FAQs clarified the level of specificity of the traffic data railroads are required to provide the SERCs and the requirement to provide updated information in anticipation of a "material change" in estimated volumes or frequency of trains traveling through a particular local jurisdiction. Specifically, citing the Order's stated goal of providing first responders an understanding of the volume and frequencies with which Bakken crude oil is transported through their communities so that they can prepare appropriate response plans, the FAQs explained that when reporting traffic data required by the Order, railroads should look at their aggregate traffic of Bakken crude oil through the jurisdiction for the prior year and after considering any reasonably anticipated changes in that traffic, provide a reasonable estimate of the weekly traffic along the affected routes. The FAQs explained that the estimate could be provided in range to account for normal variations in traffic, but any changes of 25 percent or more from the aggregate estimates provided are considered a "material change" requiring a railroad to provide updated information to the relevant SERC.
Third, the FAQs addressed issues related to the potential confidentiality of the data railroads submit to SERCs under the Order. DOT explained that the data is intended for persons with a need-to-know; that is, first responders at the state and local level, as well as other appropriate emergency response planners. Noting that historically railroads and states have routinely entered into confidentiality agreements prior to railroads providing states with information on commodities transported in trains within their jurisdictions, the FAQs clarified that railroads may require reasonable confidentiality agreements prior to providing the required information to SERCs or other state agencies. As discussed later in the following section, confidentiality concerns have been the subject of further analysis and discussion.
Fourth, recognizing that different states have different methods and agencies responsible for emergency response planning and preparedness within their jurisdictions and a state's SERC may not always be the state agency most directly involved in emergency response planning and preparedness, the FAQs provided that if a state agrees that it would be advantageous for the information required by the Order to be shared with another state agency (such as a fusion center) involved with emergency response planning and/or preparedness, as opposed to the SERC, a railroad may share the required information with that agency instead of the SERC.
Finally, the FAQs addressed railroads' responsibilities as applied to tribal lands and clarified that the Order does not require railroads to reach out to Tribal Emergency Response Commissions (TERCs), as DOT itself planned outreach to Tribal leaders to let them know that their TERCs can coordinate with the appropriate SERCs for access to data supplied under the Order. The FAQs did make clear, however, that railroads must ensure that SERCs (or relevant fusion centers or other state agencies) are also supplied with information for traffic through tribal lands.
Following the issuance of the Order, some stakeholders, including the
After the issuance of the Emergency Order in
Table 7--Commenter Composition: NPRM Notification Commenter type SignatoriesNon-Government Organization 90,869 Individuals 8,888 Industry stakeholders 22 Government organizations or representatives 77 Totals 99,856
The vast majority of commenters generally supported PHMSA's efforts to establish some level of notification requirements for the operation of trains carrying large quantities of crude oil as proposed in
Based on the public comments on the NPRM as well as PHMSA and FRA's analysis of the issues from the HHFT Final Rule, PHMSA did not adopt the notification requirements of proposed
FOOTNOTE 36
After PHMSA published the HHFT Final Rule, FRA, PHMSA and the Department received feedback from stakeholders, expressing concern about the Department's decision to forgo the proactive notification requirements of the Emergency Order and in the NPRM. Those stakeholders include Congressional representatives, State and local government officials, representatives of emergency response and planning organizations, and the public. Generally, these stakeholders expressed the view that given the unique risks posed by the frequent rail transportation of large volumes of flammable liquids, including Bakken crude oil, PHMSA should not eliminate the proactive information sharing provisions of the Order and rely solely on the consultation and communication requirements in existing
In response to these concerns and after further evaluating the issue within the Department, in a
FOOTNOTE 37 http://www.phmsa.dot.gov/hazmat/phmsa-notice-regarding-emergency-response-notifications-for-shipments-of-petroleum-crude-oil-by-rail. END FOOTNOTE
On
The FAST Act limits the applicability of the advanced notification requirements for HHFT to the Class I railroads. In this NPRM, PHMSA is proposing that the information-sharing requirements apply to all railroads with HHFT operations. This proposal fulfills the Congressional mandate and is within PHMSA's regulatory authority. Through the authority of Federal hazmat transportation law and the delegation of this authority to PHMSA by the Secretary, PHMSA is responsible for overseeing a hazmat safety program that protects against the risks to life, property, and the environment inherent in the transportation of hazmat in commerce. In proposing that the information-sharing requirements apply to all railroads with HHFT operations, PHMSA is addressing the provisions of the FAST Act, as well as acting in accordance with our delineated authority by addressing the potential safety risks posed by HHFT operations of all railroads. Requiring advanced notification from Class I, II, and III railroads is consistent with DOT's Order addressing information-sharing. While we acknowledge that the HHFT operations of Class II and Class III railroads are relatively limited in comparison to those of Class I railroads, and thus pose fewer safety risks in the rail transportation system, the HHFT operations of Class II and Class III railroads nonetheless pose safety risks that justify adherence to the proposed information-sharing requirements of this NPRM.
Recent railroad accidents demonstrate that accidents involving HHFTs are not limited to Class I railroads. In particular, the accidents in
F. Security and Confidentiality for HHFT Information Sharing Notification
In response to the Order's information-sharing provisions, railroads raised particular concerns that the sharing of routing information for HHFTs required them to reveal proprietary business information. The railroads argued that the routing information, if published or shared widely, could reveal information about customers. After considering the claim in an
Section 7302 of the FAST Act directs the Secretary to "establish security and confidentiality protections, including protections from the public release of proprietary information or security-sensitive information, to prevent the release to unauthorized persons any electronic train consist information or advanced notification or information provided by Class I railroads under this section." In fact, railroads previously raised concerns that the sharing of routing information for HHFTs required them to reveal proprietary business information. As discussed above, railroads argued that the Emergency Order routing information, if published or shared widely, could reveal information about customers. After considering the claim in an
G. Initial Boiling Point Test
An offeror's responsibility to classify and describe a hazardous material is a key requirement under the HMR. In accordance with
* ASTM D-86--Distillation of Petroleum Products at Atmospheric Pressure
* ASTM D-1078--Standard Test Method for
* ISO 3405--Petroleum Products--Determination of Distillation Characteristics at Atmospheric Pressure
* ISO 3924--Petroleum Products--Determination of Boiling Range Distribution--Gas Chromatography Method
* ISO 4626--Volatile Organic Liquids--Determination of
Table 8 provides a description of the flash point tests currently authorized in the HMR for petroleum liquids.
Table 8--Flash Point Testing Requirements for Petroleum Liquids Currently in the HMR Material Flash point test Homogeneous, single-phase liquid ASTM D-56--Standard Method of Test for having a viscosity less than45 S.U.S. Flash Point by Tag Closed Cup Tester. at 38 [degrees] C (100 [degrees] F) ASTM D-3278--Standard Test Methods forFlash Point by Small Scale Closed-Cup Apparatus. ASTM D-3828--Standard Test Methods forFlash Point by Small Scale Closed Tester. All other liquids ASTM D-93--Standard Test Methods forFlash Point by Pensky-Martens Closed Cup Tester. ASTM D-3278--Standard Test Methods forFlash Point of Liquids by Small Scale Closed-Cup Apparatus. For mixtures Method specified in S. 173.120(c)(2).
In 2014, the rail and oil industry, along with PHMSA's input, developed an RP designed to improve rail safety through the proper classification of crude oil and loading practices. This effort was led by API and resulted in the development of an ANSI-recognized recommended practice (see ANSI/API
The API
In the
shippers may still use API
PHMSA further noted that we might consider the adoption of the non-codified testing provisions of API
As specified in the final rule, the ASTM D7900 IBP test and practice recommended by industry in the API
III. Recent Spill Events
PHMSA collected and reviewed information from various sources pertaining to recent derailments involving discharges of crude oil. In this rulemaking and the accompanying analysis, PHMSA has focused on the following derailments:
By reviewing and analyzing the experience of the response to these derailments, PHMSA seeks to identify oil spill response challenges that have occurred in the past and could occur in future derailment scenarios. PHMSA incorporates this understanding of response challenges into this NPRM, which proposes to amend the requirements of 49 CFR part 130 to improve comprehensive oil spill response plans by way of new and revised requirements. PHMSA holds that improved oil spill response planning will, in turn, improve the actual response to future derailments involving petroleum oil and lessen potential negative impacts to the environment and communities.
In general, there have been a variety of challenges apparent in the responses to recent derailments involving petroleum oil. In multiple instances, those responding to oil spills have encountered difficulties in assessing the extent of oil spills due to smoke or fire. In several of the derailments discussed in this rulemaking, the relatively remote location of the town or derailment site limited responders' access to the derailment site and encumbered the deployment of response equipment (e.g., heavy machinery) at the site. Response providers have also faced adverse weather or the potential for adverse weather, which can complicate response protocols and compound the adverse effects of spills. Communications between railroads, response providers, and Federal, State, and local officials are often challenging due to the broad array of organizational representation at derailment sites and the lack of formal response communications protocols. Further, derailments involving energetic ruptures and fires can threaten public safety, necessitating evacuations that span multiple days and require significant resources, including personnel and leadership with experience and training in emergency management.
Derailments often require a significant, long-term commitment of personnel and equipment to remediate an oil spill. Moreover, derailments involving petroleum oil typically require diverse technical or scientific response services. For example, monitoring a direct discharge into a waterway requires water sampling services to detect if harmful levels of compounds found in petroleum oils have contaminated affected waterways. Depending on the proximity of an oil spill to rivers, the spill response could also require monitoring of river levels, since rising river levels could rapidly exacerbate the extent of an oil spill. The smoke emanating from fires requires air monitoring services to detect if harmful levels of air pollutants have jeopardized local air quality and public health.
Thus, in the draft RIA, PHMSA has identified and summarized several recent derailments to illustrate the circumstances and consequences of derailments involving petroleum oil transported in higher-risk train configurations. We have outlined some of the challenges faced by the response to each spill event and discussed ways in which comprehensive oil spill response plans may have improved spill response efforts and/or alleviated the adverse consequences to the nation's waterways or environment.
IV. National Transportation Safety Board Safety Recommendations
As previously discussed, in addition to the efforts of PHMSA and FRA, the
Table 9--NTSB Recommendations Addressed in This Rulemaking NTSB Summary Addressed in Description recommendation this rule? R-14-02--Issued Recommends that FRA develop a Yes Propose January 23, program to audit response requirements 2014 plans for rail carriers of for FRA to petroleum products to ensure approve that adequate provisions are comprehensive in place to respond to and oil spill remove a worst-case discharge response plans to the maximum extent for rail. practicable and to mitigate or prevent a substantial threat of a worst-case discharge R-14-05--Issued Recommends that PHMSA revise Yes Propose to January 23, the spill response planning revise the 2014 thresholds contained in 49 CFR spill planning part 130 to require thresholds to comprehensive response plans address 20 cars to effectively provide for the of liquid carriers' ability to respond petroleum oil to worst-case discharges in a continuous resulting from accidents block or 35 involving unit trains or cars of liquid blocks of tank cars petroleum oil transporting oil and petroleum in a consist. products R-14-14--Issued Recommends that PHMSA require Yes The proposed August 22, 2014 railroads transporting information hazardous materials through sharing communities to provide requirements in emergency responders and local this rulemaking and state emergency planning and the adopted committees with current routing commodity flow data and assist requirements in with the development of final rule emergency operations and HM-251 (80 FR response plans 26643, May 8, 2015) address this recommendation.
V. Summary and Discussion of Public Comments on Oil Spill Response Plans
A. Overview of Comprehensive Oil Spill Response Plans
In the
In general, comments on the ANPRM were: (1) General statements of support or opposition; (2) personal anecdotes or general statements not specifically related to the proposed changes; (3) comments beyond the scope of the oil spill response planning provisions of the CWA; or (4) identical or nearly identical letter write-in campaigns submitted as part of comment initiatives sponsored by organizations. For example, many commenters recommend insurance or liability requirements for railroads that are not within the scope of PHMSA's statutory authority. Although PHMSA does not have statutory authority to impose insurance or liability requirements, the FAST Act mandates the Secretary initiate a study on the levels and structure of insurance for railroad carriers transporting hazmat under
FOOTNOTE 38 It should be noted that individuals and non-government organization signatories were not categorized consistently due to limitations from transferring capturing comments initially submitted to PHMSA-2012-0082. END FOOTNOTE
Table 10--Overall Commenter Breakdown(38M) Background Signatories Description and examples Non-Government 65,044 Environmental groups, Organization emergency response organizations, and other non-governmental organizations. Government 3,299 Local, state, tribal governments or representatives, U.S. Congress members, etc. Individual 2,079 Public submissions not directly representing a specific organization. Industry Stakeholder 30 Trade organizations, intermodal carriers, offerors.
B. Plan Scope/Threshold of Comprehensive Oil Spill Response Plans
In order to inquire about the potential impact of different thresholds on the regulated community, PHMSA asked the public to comment on the following question: "When considering appropriate thresholds for comprehensive OSRPs, which of the following thresholds would be most appropriate and provide the greatest potential for increased safety? The following thresholds were provided as examples: (a) 1,000,000 gallons or more of crude oil per train consist; (b) an HHFT of 20 or more carloads of crude oil per train consist; (c) 42,000 gallons of crude oil per train consist; or (d) another threshold. In addition, PHMSA asked: What thresholds would be most cost-effective?"
Comments to the ANPRM on the scope of the rule were wide-ranging. Many commenters commented on this question directly, voicing support of one or more of the proposed thresholds or suggesting a different threshold, while other commenters chose to comment generally.
The first threshold, (a) 1,000,000 gallons or more of crude oil per train consist was not supported by any commenters as a single metric. Two commenters: The
In opposition to the first proposed threshold, many commenters have suggested that the 1,000,000 gallons threshold is not effective because oil spills involving quantities below this threshold could cause considerable harm to the environment and in particular, rivers or waterways. On this point, LRT-Done Right has reiterated the significance of PHMSA's derailment data, stating that ". . . less than one carload of spilled oil or ethanol can present great danger." Similarly, the Delaware Riverkeeper Network commented that, for example, "a spill of 25,000 gallons of oil in
Commenters have also suggested that 1,000,000 gallons is not an adequate threshold because preventing oil spills within the context of rail transport differs substantially from the context of fixed oil facilities. The Delaware Riverkeeper Network has stated, "A threshold of 1,000,000 gallons is . . . inappropriate because the current 1,000,000 gallon threshold [under
PHMSA's second proposed threshold, (b) an HHFT of 20 or more carloads of crude oil per train consist, was supported at least in part by three commenters. /39/ Namely, the
FOOTNOTE 39 It should be noted that the HMR now define an HHFT as "as a train comprised of 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block or 35 or more loaded tank cars of a Class 3 flammable liquid across the entire train." The (b) threshold was based on the HHFT definition proposed in the
In opposition to a threshold based on the HHFT definition, and similar to commenters' opposition to the first threshold of 1,000,000 gallons, some commenters have indicated that incidents need not involve an HHFT in order to cause considerable harm to the environment.
Several commenters supported the third proposed threshold: (d) 42,000 gallons of crude oil per train consist. Commenters have shown that it is at least numerically consistent with current regulations in 49 CFR part 130, even though there is a key distinction in which part 130 upholds a threshold of 42,000 gallons for a single package (i.e., a single tank car) and the ANPRM has proposed 42,000 gallons as a threshold within a single train consist. As the
Many commenters have supported the third proposed threshold (i.e., (d) 42,000 gallons of crude oil per train consist) on the basis that it was the lowest quantity threshold that PHMSA proposed. Given that approximately 30,000 gallons can be carried in a single tank car, 42,000 gallons amounts to the quantity of crude oil that could be contained and transported in two tank cars. Therefore, among the proposed thresholds, the 42,000 gallons per train consist threshold would plausibly have a high applicability and require the development of a comprehensive plan by the greatest number of railroads. Thus, commenters supporting this threshold have held that it would plausibly result in the greatest amount of prevention and preparation on the part of affected entities and consequently, the greatest amount of risk reduction, enhancement of public safety, and protection of the environment.
Similarly, the threshold of 42,000 gallons received some support from commenters that propose lower quantities of crude oil as a threshold (e.g., 1 gallon, 24,000 gallons, 30,000 gallons, etc.), but acknowledged that a threshold of 42,000 gallons for practical purposes would result in approximately the same amount of applicability and affected entities. Assuming the typical tank car contains 27,000 to 30,000 gallons of crude oil, the main difference between a threshold of 1 gallon and 42,000 gallons would be whether a railroad could legally transport one tank car of crude oil without a comprehensive oil spill response plan. Accordingly, the
Nevertheless, some commenters have suggested that the threshold should be one tank car or any quantity of crude oil.
In the ANPRM, PHMSA encouraged commenters to provide additional thresholds differing from those that PHMSA explicitly proposed. According to AAR and ASLRRA, the scope of the rule should involve a threshold based on "Petroleum Crude Oil Routes" (PCORs). AAR and ASLRRA define PCORs as ". . . a railroad line where there is a minimum of twelve trains a year, which is an average of one train a month, that transport 1,000,000 gallons of petroleum crude oil (UN1267 and/or UN3494) or more that is within 800 feet or closer from the centerline of track to a river or waterway that is used for interstate transportation and commerce for more than 10 miles." Assuming each tank car has a capacity of 30,000 gallons, the transport of 1,000,000 gallons of crude oil would require around 33 tank cars.
The AAR and the ASLRRA also proposed geographical criteria as part of their PCOR definition, differing from PHMSA's proposed thresholds, which are based on a quantity transported or number of carloads within a train consist. As part of its geographical criteria, the AAR suggests that a PCOR must be within 800 feet of a river or waterway used for interstate transportation and commerce for more than 10 miles. The AAR claims that the 800 feet figure is based on a railroad's experience following a discharge. The AAR does not give further details on how the 800 feet figure was developed. The AAR also claims that the 10 miles figure used in its PCOR definition is based on regulations within 49 CFR part 194, which are applicable to oil pipeline owners and operators and are overseen by
In addition, the AAR has limited the scope of its proposed threshold to include only those railroad lines that move at least twelve trains a year, an average of one train per month. The AAR did not include any data to support incorporating the parameter of twelve trains per year into the NPRM's thresholds or to show that the use of the PCOR definition as a threshold would improve safety or be cost-effective.
Many other commenters proposed alternative thresholds, such as five carloads or 3,500 gallons per tank car. In support of a five carload threshold, NASTTPO has stated that "it is common for more than one HHFT tank car to be involved [in a derailment]." In support of a 3,500 gallons per tank car threshold, commenters, such as safety consultant
In addition, some commenters restated the need to revise the thresholds in 49 CFR part 130 and suggested that they align with probable spill volumes or other planning volumes found in other federal regulations (e.g., "average most probable" or "maximum most probable"). In particular, the
Similarly, the
In addition to API's above comment, PHMSA received additional commenter input on the cost-effectiveness of the proposed thresholds. Environmental groups and others have expressed that cost concerns should be secondary to concerns about the potential benefits of enhancing public safety and reducing damage to the environment. For example, the
Many commenters have suggested that the scope of this rule be expanded to include other materials besides oil. Commenters have asked PHMSA to require comprehensive oil spill response plans for rail cars transporting any type of hazardous materials. The
Conversely, other commenters have suggested that the scope of the rule be limited in order to more specifically address the risks of petroleum crude oil transport. "Petroleum crude oil" (UN1267) is a specific entry in the Hazardous Materials Table (HMT) under 49 CFR 172.101. "Petroleum sour crude oil, flammable, toxic" (UN3494) is a similar entry. On this basis, AAR has asked that the scope of the rule be limited explicitly to these entries in the HMT.
Discussion of Comments: Plan Scope/Threshold
PHMSA carefully considered the comments submitted to the ANPRM regarding the scope of the rule in order to apply comprehensive OSRP requirements to address the increased risks posed by the expansion of domestic energy production and subsequent rail transportation. PHMSA recognizes the importance of establishing a threshold that enhances public safety, protects the environment, is reasonable and practical, and facilitates compliance and enforcement. PHMSA acknowledges that an effective threshold will take into account a range of factors, and might include distinctions regarding the quantity of petroleum oil transported, the number of carloads within a train consist, the definition of different materials subject to regulation, geographic or location-based criteria, and cost/benefit or practical considerations.
PHMSA emphasizes that safety and environmental risks are related to the quantity of oil transported by trains, and the configuration of tank cars loaded with petroleum oil. Thus, PHMSA has proposed in this NPRM to expand applicability for petroleum oil based on the number and configuration of tank cars transporting petroleum oil in a train. Specifically, this rulemaking proposes that comprehensive oil spill response plans be required of railroads that transport 20 or more tank cars loaded with liquid petroleum oil in a continuous block in a single train or 35 or more of such tank cars dispersed throughout the train. We propose the comprehensive OSRP requirements continue to apply to tank cars exceeding 42,000 gallons carrying petroleum or other non-petroleum oil. In this NPRM, we discuss our basis for this proposed applicability, as well as how it may differ from commenters' suggestions or proposals.
The scope of this rule is directly related to the definition of oil because the statutory authority to require OSRPs comes from
This rulemaking has been initiated to respond to the changing conditions from the increase in the volume of petroleum oil transported by rail and consequences of resulting incidents. PHMSA is not aware of incidents of unit trains carrying other non-petroleum oils which have demonstrated a need to expand the applicability of comprehensive plans for these oils. Therefore, instead of proposing that the expanded applicability of the comprehensive plan apply to all oils (as defined in 33 U.S.C. 1321), PHMSA proposes to limit the proposed expanded applicability to petroleum oils, whether refined or unrefined, transported in certain train configurations. PHMSA proposes to continue to apply the threshold of tank cars exceeding 42,000 gallons carrying petroleum or other non-petroleum oil.
Further, we propose to revise the definition of "petroleum oil" in this rulemaking as "any oil extracted or derived from geological hydrocarbon deposits, including oils produced by distillation or their refined products." This definition continues to include mixtures of both refined products, such as gasoline and unrefined products, such as petroleum crude oil. We are not proposing any changes to the scope in
PHMSA disagrees with AAR that the applicability of the comprehensive plans should be limited to petroleum crude oil, as described by HMT entries
There are several factors to consider when determining which hazardous materials should be subject to the new or revised requirements of this proposed rule. In general, PHMSA assesses the risks of hazardous materials in transportation in accordance with the nine different hazard classes under the HMR; however, the regulations we seek to amend in 49 CFR part 130 are not part of the HMR. Namely, part 130 is authorized under 33 U.S.C. 1321--Oil and hazardous substance liability, not the Federal hazardous materials transportation law of 49 U.S.C. 5101-5128.
Moreover, the proposed applicability in this NPRM generally aligns with the definition of a "High-Hazard Flammable Train" (HHFT) as published in the final rule, "Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains" ("HM-251"). The proposed applicability differs, however, in the types of materials affected. By way of HM-251, the definition of an HHFT involved the transport of all Class 3 flammable liquids; whereas the comprehensive OSRP requirements in this rulemaking involve the transport of petroleum oil for consistency with part 130's statutory authority. Therefore, the proposed expanded applicability applies to those HHFTs which carry petroleum oil. This creates an integrated approach between the planning requirements in this rulemaking and the other operational controls in the HMR. To better facilitate this integration, residue or diluted mixtures of petroleum oils that no longer meet the definition of a Class 3 flammable or combustible liquid per 49 CFR 173.120 are not included in expanded applicability.
In the ANPRM, PHMSA asked if the 1,000,000 gallons threshold is appropriate for safety and cost-effectiveness. No commenters supported using 1,000,000 gallons as a single metric for applicability. Many commenters have suggested that the 1,000,000 gallons threshold is not effective because oil spills involving trains with quantities below this threshold could cause substantial harm to the environment. While commenters provided many examples of thresholds below 1,000,000 gallons, commenters provided insufficient data about the likelihood of a release from these tank car volumes to demonstrate such thresholds are "reasonably expected" to cause substantial harm. Thus, in order to better understand this differential of risk and the most likely number of punctures resulting in a derailment, PHMSA looks to the modeling conducted by FRA in support of HM-251. /40/ In particular, HM-251 offered a scientific justification for the HHFT definition and using this threshold of tank cars as an identifier of higher-risk train configurations. Based on modeling and analysis performed by FRA, 20 tank cars in a continuous block loaded with a flammable liquid and 35 tank cars loaded with a flammable liquid dispersed throughout a train display consistent characteristics as to the number of tank cars likely to be breached in a derailment. The operating railroads commented on HM-251 and indicated that this threshold would exclude "manifest" trains and focus on higher risk, "unit" trains. FRA completed an analysis of a hypothetical train set consisting of 100 cars. The analysis assumes 20 cars derailed. The highest probable number of cars losing containment in a derailment involving a train with a 20-car block (loaded with flammable liquid) located immediately after the locomotive and buffer cars would be 2.78 cars. In addition, the most probable number of cars losing containment in a derailment involving a manifest train consisting of 35 cars containing flammable liquids dispersed throughout the train would be 2.59 cars. Therefore, 20 tank cars in a block and 35 tank cars dispersed throughout a train display consistent characteristics (i.e., 2.78 cars breached vs. 2.59 cars breached). If the number of flammable liquid cars in a manifest train were increased to 40 or 45, the most likely number of cars losing containment would be 3.12 and 3.46 cars, respectively. This analysis served as one basis for the selection of the revised HHFT definition for HM-251, and it also helps to shape our discussion of applicability in this proposed rule for oil spill response plans (HM-251B).
FOOTNOTE 40 80 FR 26665; 5/8/2015. END FOOTNOTE
As a result of this modeling, PHMSA holds that a derailment involving a train moving less than 20 tank cars in a continuous block, or less than 35 tank cars throughout the train, would result in relatively fewer punctures than derailments involving more than this number of tank cars. Specifically, as a result of this modeling, PHMSA suggests that the most likely number of tank car punctures for a train with less than 20 tank cars in a block would be less than 2.78, and in a derailment scenario with less than this number of punctures, the derailment is significantly less likely to cause substantial harm to the environment. In more general terms, PHMSA would suggest, as a result of these modeling outcomes from FRA, that a derailment involving two or fewer tank car punctures is less likely, and therefore not "reasonably expected" to cause substantial harm to the environment. Therefore, we believe the applicability proposed in this NPRM appropriately indicates the trains that can reasonably be expected to cause substantial harm to the environment. Consequently, by way of this rulemaking, PHMSA proposes to require these higher-risk train configurations to operate in conformance with comprehensive oil spill response plans.
In addition to the data on the most likely number of tank car punctures in a derailment, PHMSA further maintains that lower-risk train configurations should not be the focus of this rulemaking because extending the requirements of this rule to operators of lower-risk configurations could be burdensome, costly, and inefficient. There are many costs involved in developing and implementing a comprehensive oil spill response plan, such as retainer fees, training and drill costs, and plan development and submission costs. For more information regarding regulatory flexibility, please see Section VIII, Subsection E ("Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures"). For more information regarding the costs of this rule on the regulated community, please see the draft RIA and the associated discussion in Section VIII, Subsection A ("Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures").
Commenters have also suggested that 1,000,000 gallons, which is used as a threshold in the development of non-transportation-related facility response plans, is not an adequate threshold because the context of rail transport differs substantially from the context of fixed facilities. PHMSA agrees. PHMSA believes that a threshold based on a number of carloads is more effective and practical, and the proposed applicability in this rulemaking is specific to the context of rail transportation. Moreover, as previously discussed, the proposed applicability identifies higher-risk train configurations which could reasonably be expected to cause substantial harm to the environment in the event of a derailment.
A few commenters voiced support for the second threshold of the HM-251B ANPRM, which aligned with the HHFT definition proposed in the HM-251 NPRM and published on
Moreover, this applicability is important because it is likely that trains with less than 20 tank cars of petroleum oil in a continuous block, or less than 35 of such cars dispersed throughout the train, are the result of configuring "manifest" trains. Manifest trains involve combining multiple shipments of potentially various materials from various shippers to form a single train consist. These trains differ substantially from "unit" trains, which generally involve a single commodity offered by a single shipper (the consignor) and delivered to a single entity (the consignee). As discussed in the final rule document for HM-251, the rail industry has noted that manifest trains carrying limited loads of oil along with other commodities pose less of a risk than unit trains with significantly larger loads of oil. Further, the rail industry commented on the NPRM of HM-251, relaying that in many situations it would be difficult to pre-determine when an HHFT would be used and that shippers of smaller volumes of oil would not know if their shipment would ultimately be configured into an HHFT.
PHMSA carries these concerns and related analyses from HM-251 into this proposed rule, as we believe it is still pertinent to the discussion of comprehensive oil spill response plans. In this rulemaking, PHMSA intends to identify higher-risk train configurations that pose a threat of substantial harm to the environment. Conversely, PHMSA does not intend to affect lower-risk train configurations moving smaller quantities of petroleum oil, which are more likely to be the result of configuring a manifest train. Lower-risk train configurations are significantly less likely to cause substantial harm to the environment and extending the full breadth of the proposed requirements for a comprehensive plan to entities transporting lower-risk train configurations would likely be too burdensome and costly, for the limited safety benefits provided. Furthermore, the proposed quantity provides an integrated approach to the comprehensive OSRP requirements and the requirements of HHFTs.
In opposition to an HHFT-like applicability, many commenters have argued that oil spills involving carloads below this threshold could cause considerable harm to the environment. On this point, PHMSA acknowledges that oil spills of a lesser amount can cause harm, but holds that trains carrying less than 20 tank cars of petroleum oil in a continuous block, or less than 35 of such tank cars dispersed throughout the train, are effectively lower-risk train configurations, and they cannot be reasonably expected to cause substantial harm. In other words, these trains may be capable of causing harm, but the harm they can cause is significantly less likely to qualify as substantial harm. As previously discussed, modeling data from FRA indicates that trains with less than 20 tank cars in a block, or less than 35 tank cars dispersed throughout a train, could not be reasonably expected to cause substantial harm because, in derailment scenarios, relatively few tank cars containing petroleum oil would be breached on average. As previously discussed, this modeling demonstrated that the most likely number of punctures in a derailment scenario involving a train with 20 tank cars in a continuous block would be 2.78.
Furthermore, given the enhanced tank car standards promulgated in HM-251 and resulting improvements in tank car integrity, PHMSA believes the likelihood of a tank car releasing all of its contents in a derailment has been significantly reduced. Thus, in relation to the derailment modeling data (discussed above), PHMSA maintains that a train with a 20-car block of petroleum oil would not result in 83,400 gallons spilled (2.78 tank car punctures x 30,000 gallons per tank car = 83,400 gallons discharged from the breached tank cars). Rather, a derailment scenario involving 20 tank cars of petroleum oil in a continuous block would most likely result in less than 83,400 gallons discharged. For these reasons, PHMSA cautions against the assumption implicit in some commenters' comments that the derailment of one tank car automatically results in the discharge of 30,000 gallons of product, and the derailment of two tank cars is equivalent to the discharge of 60,000 gallons of product, and so forth. As the modeling data from FRA indicates, the number of tank cars that breach in a derailment scenario is in all likelihood fewer than the number of tank cars that derail. Separately, given the tank car design enhancements promulgated by HM-251, the likelihood that breached tank cars would release all of their contents has been reduced. Accordingly, PHMSA feels that extending the requirement to develop a comprehensive OSRP to entities operating lower-risk train configurations would not be efficient. It would require significant investments on the part of small entities that are not key factors in the transport of petroleum oil by rail, and these investments would not yield analogous safety benefits. Please see Section VIII, Subsection E ("Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures") for impacts on small entities and the draft RIA for further discussion of safety benefits and costs to industry.
Many commenters voiced support for the third threshold proposed in the ANPRM, which was 42,000 gallons. PHMSA disagrees with these comments because we believe that a threshold based on the number of carloads of petroleum oil in a train would be more practical for compliance and enforcement purposes than a threshold based on gallons. In general, 42,000 gallons as a threshold could be impractical or burdensome. Since tank cars tend to carry around 30,000 gallons of product, a threshold of 42,000 gallons would effectively equate to differentiating a train with one carload of petroleum oil and a train with two carloads and thus, requiring a comprehensive plan for the transport of two carloads of petroleum oil. As previously discussed, PHMSA affirms that higher risk train configurations should be the focus of the proposed rule and that a train transporting two tank cars of petroleum oil simply does not present the same amount of risk as higher-risk train configurations. While a train with two tank cars of petroleum oil could derail, potentially releasing its contents and harming the environment, it is not nearly as likely to cause substantial harm as higher-risk trains with much larger quantities of petroleum oil.
In the ANPRM, PHMSA asked the public if "another threshold" were appropriate or cost-effective. In response to PHMSA's inquiry of "another threshold," many commenters offered thresholds that are less than 42,000 gallons, such as one tank car, 24,000 gallons, 3,500 gallons, or any quantity of petroleum oil. PHMSA disagrees with these suggestions. Rail industry practices demonstrate that there is only a slight distinction between the threshold of 42,000 gallons, which was proposed by PHMSA in the ANPRM, and the lesser quantities proposed by some commenters in response to the ANPRM. In practical terms, the thresholds of any quantity, 3,500 gallons, and 24,000 gallons would result in regulating trains with one tank car of petroleum oil, whereas a 42,000-gallon threshold would result in regulating trains with two tank cars. PHMSA maintains that this distinction is slight and in either case, requiring comprehensive plans of trains that transport merely one or two tank cars of petroleum oil would most likely be burdensome upon implementation and be costly relative to the limited safety benefit it would offer, especially for small entities. As previously discussed, PHMSA also holds that a threshold based on a number of carloads is more practical than a threshold based on a gallon amount.
In a similar vein, PHMSA holds that imposing an applicability of five tank cars, or any other number of tank cars that is less than 20 in a continuous block or 35 when dispersed throughout a train, would most likely be costly or burdensome and yield limited safety benefits due to the impacts on small entities as well as "manifest" train configurations involving petroleum oil. Please see the draft RIA for further discussion of the costs and benefits of the proposed rule.
In response to the comment by AAR and ASLRRA, PHMSA disagrees with using the definition of a Petroleum Crude Oil Route (PCOR) of " . . . a railroad line where there is a minimum of twelve trains a year, which is an average of one train a month, that transport 1,000,000 gallons of petroleum crude oil (UN1267 and/or UN3494) or more that is within 800 feet or closer from the centerline of track to a river or waterway that is used for interstate transportation and commerce for more than 10 miles" to determine whether a rail carrier must develop a comprehensive plan. We do not have information on exactly how many rail carriers or trains would be permitted to transport petroleum oil without a comprehensive plan if the applicability of this rulemaking were to incorporate the AAR and ASLRAA's proposed PCOR definition or the quantity of 1,000,000 gallons, and invite public commenters to provide information to assist in further evaluating the benefits and costs of these alternative applicability thresholds. Overall, PHMSA believes that the PCOR definition is overly complicated, and creates uncertainty for FRA, communities, and responders about which unit trains of petroleum oil are excluded from the requirement to have a comprehensive plan. PHMSA seeks to align increased risk with improved oil spill response planning such that higher risk unit train configurations would require comprehensive plans. PHMSA suggests that AAR and ASLRRA's PCOR definition might permit an unwarranted number of trains which present the potential of substantial harm to the environment to operate without a comprehensive plan. Additional concerns with this definition are described in the following discussion.
Further, as previously discussed, PHMSA disagrees with the PCOR definition because PHMSA believes that using a gallons basis for the threshold could present compliance and enforcement issues, especially relative to the use of a number of tank cars. Since tank cars vary in the quantity of product that they can transport, PHMSA suggests it is much easier to determine the number of tank cars in a train carrying petroleum crude oil than it is to assess the exact amount of gallons carried by any number of tank cars designed with potentially different capacities. For example, a train carrying 35 tank cars of petroleum oil would likely be "around the margin" of 1,000,000 gallons of petroleum oil. In other words, accurately determining if the train as configured has 990,000 gallons of product, versus 1,000,000 gallons, might be difficult for compliance and enforcement purposes; whereas, it is easier to observe that the train as configured has 35 tank cars. While we proposed two thresholds based on gallon amounts in the ANPRM, we have since crafted our proposed threshold in the NPRM to reflect this updated viewpoint and analysis.
Moreover, PHMSA disagrees with the AAR's use of 800 feet as a geographic criterion in the PCOR definition because it might present compliance and enforcement issues. Assessing the need for a comprehensive plan or a potential violation would require a potentially taxing confirmation of the distance of a waterway from the centerline of the track, especially "around the margin" of 800 feet. In addition, this geographic criterion might result in different outcomes of response preparedness despite nearly identical levels of risk. For example, in a scenario wherein one waterway is 790 feet from the centerline of the track, and another scenario wherein a different waterway is 801 feet from the centerline of the track, the second waterway might be better protected from an oil spill than the first. Thus, the 800 feet geographic criterion appears to be arbitrary given that the commenter has not offered data to suggest that 800 feet would be an appropriate "buffer" zone between a potential derailment site and navigable water and as such, enhance safety and prevent the entry of oil into the waterway. Further, the distance between the centerline of the track and navigable water is but one of the several factors that could influence the probability of a spill damaging navigable water; that is, other geographical factors exist that might increase this probability substantially.
PHMSA also disagrees with AAR's contention that in order to trigger the response plan requirement, the waterway in question must be a maximum distance of 800 feet from the centerline of the tracks and the waterway must be "a river or waterway used for interstate transportation and commerce." Both the distance from and criteria for a waterway as proposed by AAR are inconsistent with the CWA, which provides the statutory authority for this rulemaking. For example, rather than a distance of "800 feet" from navigable waters, the CWA requires oil spill response plans for any facility that "because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone." PHMSA is not aware of evidence demonstrating that all spills originating more than 800 feet away from navigable waters could not be reasonably expected to cause substantial harm to these resources. PHMSA assumes that all routes are expected to have the potential to impact navigable waters and that performing an analysis for every point along the route is not practical, as there are various factors that could complicate this analysis and hinder the ability to foresee an impact to navigable waters. For example, identification of navigable waters requires consideration of geographical features, seasonal variation, vegetation, etc. The possible impact zone surrounding the track could also depend on topography or the viscosity of the petroleum product transported. Therefore, the entire route should be covered by the Oil Spill Response Plan and after a discharge of oil occurs, the Federal On-Scene Coordinator should make the determination of the threat in the specific conditions.
In addition, per AAR's PCOR definition, a track or segment of track over which only eleven crude oil-carrying trains travel per year would not require a comprehensive plan; however, if a twelfth train travels over this same segment or track, it would necessitate a comprehensive plan. Thus, PHMSA suggests that this aspect of the PCOR definition may be impractical for compliance and enforcement efforts. We anticipate that it would not be possible for a railroad to make an accurate, advance prediction of commodity flows and train consists, because that prediction would rely on external factors beyond the railroad's control. For example, commodity flows and train consists would be affected by fluctuations in oil or other commodity prices, decisions by customers to pursue different shipping routes, or overall economic factors.
However, PHMSA recognizes that AAR has proactively identified ways to target the affected entities that present higher safety risks while trying to limit the impact of the proposed rule and associated costs on entities that pose significantly less risk. To that end, PHMSA appreciates the attentiveness to providing regulatory flexibility and holds that it may be acceptable to except certain small entities from the proposed requirements of comprehensive oil spill response plans if they are overly costly or burdensome for these entities. For more information regarding regulatory flexibility, please see Section VIII, Subsection E ("Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures"). Moreover, PHMSA seeks comment on ways that might be used to effectively provide regulatory flexibility to bona fide small entities that pose a lesser safety risk and may not be able to comply with the requirements of the proposed rule due to cost concerns, limited benefit, or practical considerations.
C. Contents of Comprehensive Oil Spill Response Plans
Commenters submitted a variety of comments regarding plan contents to the ANPRM. In the ANPRM, PHMSA asked the public two questions that were specific to the area of plan contents. To paraphrase, the first question asked whether the current requirements for comprehensive OSRPs were "clear" or if greater specificity should be added to 49 CFR part 130 ("Part 130"). The second question asked if any comprehensive OSRP elements should be "added, removed, or modified."
Regarding the first question, the majority of commenters stated that they were not clear and needed greater specificity. For example, the
However, some commenters stated that the existing requirements are adequate as currently written. The
PHMSA also asked the public if any plan elements within part 130 should be added, removed, or modified. Several commenters identified plan elements that could be added, removed, or modified, and suggested different means of addressing: Adverse weather conditions; topological and geographic risks near rail routes; environmentally sensitive or significant areas; temporary storage of loaded rail cars; worst-case discharge planning; communication between Qualified Individuals and local, state, and federal officials; training standards; drills; equipment inspection; private and public resource contracting; response time requirements; timeframes for reviewing or updating OSRPs; public awareness; alternative plans; and
The Association of American Railroads (AAR) and American
The American Petroleum Institute (API) has suggested that comprehensive OSRP requirements be re-structured to be "consistent and complementary with other legal spill prevention rules." API holds that comprehensive OSRP requirements could use a different format. In addition, API asks that DOT consider adopting the "
The
Safety consultant
In a similar vein, the
The Emmett Environmental Law and Policy Clinic of
Several other commenters have asked that comprehensive OSRP requirements be amended to address specific areas of environmental, cultural, or national significance. For example, the
Washington State's
In regard to changing the comprehensive OSRP requirements,
Several firefighting and/or emergency response organizations have commented on the need to add, remove, or modify the elements of part 130.
In addition, the
With respect to adding elements to part 130, the
Similarly, the
The Honorable
Discussion of Comments: Content of Plan
We agree with the majority of commenters that the current regulations lack specificity and it can be difficult to understand the requirements of the plan. The lack of specificity is reflected in the recommended elements provided by commenters. Commenters from diverse backgrounds suggested that additional requirements for comprehensive oil spill response plans should add greater specificity to existing plan elements. For example, many commenters recommended that drills should satisfy the National Preparedness for Response Exercise Program (PREP). Many commenters also recommended adding elements that were already encompassed in the current comprehensive plan requirements. For example, the requirement to identify environmentally sensitive areas is a component of the current requirement to comply with the National Contingency Plan (NCP) and applicable Area Contingency Plan (ACP). However, the general reference to be consistent with the NCP and ACP in 40 CFR part 300 is unclear, as this is a voluminous citation with many sections that do not apply to rail. Overall, the input from commenters demonstrated a clear need to improve the comprehensive plan requirements. Therefore, we are proposing to separate the requirements for basic and comprehensive plans. The following discussion focuses on the proposed changes to comprehensive plans. As discussed in the previous section, this rulemaking proposes to require comprehensive plans for tank cars containing more than 42,000 gallons of oil in a single package or railroads that transport 20 or more tank cars loaded with liquid petroleum oil in a continuous block in a single train or 35 or more of such tank cars dispersed throughout the train. Thus, the 12-hour response timeframe applies only to track where covered trains traverse.
While it is not feasible to include every element recommended by commenters, we looked for common themes and recommendations between different commenters, requirements which would address challenges faced in recent spill incidents, and requirements addressed by first responders during PHMSA's stakeholder outreach efforts. We have restructured and clarified the requirements of a comprehensive oil spill response plan to be more similar to other federal agencies and to provide greater specificity to assist in the regulated community's compliance with plan elements. We did not propose to adopt the recommendations from commenters that did not have a clear connection to the statutory requirements or parallel requirements in other federal regulations for oil spill response. Overall, the proposed changes are most similar to
We agree with the multiple commenters such as API and Mr. Joeckel who recommended using a requirement similar to response zones in pipeline regulations. This approach was identified as the best framework to address the unique challenge of creating a plan which spans large geographic distances. The CWA statute requires that the spill response plans make resources available by "contract or other means." It is unlikely and sometimes impossible for the same responders and resources will be available at all points on a particular route. Therefore, it is important that response zones in the plan both identify the response resources, and ensure the response resources are capable of covering the entire response zone.
Commenters provided different recommendations for response times.
Commenters also requested that plans more closely align with other federal agencies, such as the OPS requirements. In
This rulemaking proposes to provide a single metric of 12 hours to describe the location of response equipment, which is within the 4 to 24 hour range suggested by commenters. The 12 hour metric aligns with the timeframe for `tier 1' resources for `all other areas' required by OPS in part 194. We are also proposing to adopt the USCG assumption that that response resources can travel according to a land speed of 35 miles per hour. Therefore, for response resources traveling by land, the comprehensive OSRP will only be approved if response resources are staged within 420 miles of any point in the response zone, or the railroad demonstrates that a faster speed is achievable (e.g. air support to transport resources).
We did not propose a tiered approach to the response resources. The AAR and ASLRRA proposal recommended allowing railroads to define "High Volume Area" within each plan without any criteria for such a definition. As there is nothing prohibiting railroads from staging resources closer to specific route segments, we disagree that a voluntary designation will increase coverage for sensitive areas. We also disagree that 24 hours provides adequate coverage as a single metric. As described above, OPS provides specific criteria used in determining and defining high volume areas that were absent in the AAR and ASLRRA proposal. However, not all the criteria in the OPS definition of "High Volume Area" translate easily to rail transportation (e.g., pipeline diameter). As we stated previously, we assume the entire route threatens navigable water, and further identification for every point along the route is impracticable. Therefore, we assume if even if a shorter response time for spills more likely to impact navigable waters, and a longer response for spills that are less likely to impact navigable waters, railroads may need to locate response resources using the shorter response time requirement for its entire track network where covered trains traverse. This would increase costs with uncertain corresponding benefit. We note that we solicit comment in both this NPRM and the RIA on whether the rule should define specific track locations where shorter response times might be warranted and provide the defining criteria for these locations.
PHMSA acknowledges that some areas in proximity to certain navigable waters may benefit more than other areas from staging and deploying resources in closer proximity, due to the potentially higher consequences of spills in these areas. Therefore, PHMSA will consider adopting shorter response time requirements than 12 hours in the final rule based on information provided by commenters and other information which may become available before a final rule is published. Specifically, PHMSA solicits comments on whether the 12-hour response time is sufficient for all areas subject to the plan, or whether a shorter response time (e.g., 6 hours) is appropriate for certain areas (e.g. High Volume Areas) which pose an increased risk for higher consequences from a spill. We request comments on criteria to define such "High Volume Areas" where shorter response time should be required. Additionally, we ask whether the definition for "High Volume Area" in 49 CFR 194.5 (excluding pipeline diameter) captures this increased risk, or if there is other criteria which can be used to reasonably and consistently identify such areas for rail. PHMSA also asks whether requiring response resources to be capable of arriving within 6 hours will lead to improvements in response, and for specific evidence of these improvements. Further, PHMSA requests public comments on whether the final rule should have a longer response time than 12 hours for spills for all other areas subject to the plan requirements in order to offset costs from requiring shorter response times for High Volume Areas.
In addition to the time frame in which response resources must arrive, the effectiveness and adequacy of these resources must also be assessed. To that end, PHMSA has proposed in this rulemaking that affected entities determine a worst-case discharge (WCD) planning volume. PHMSA maintains that, without this particular planning volume, rail carriers that transport petroleum oil in higher-risk train configurations would most likely be unable to "ensure by contract or other means . . . the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge," as stipulated in the statute of the CWA.
For purposes of understanding what constitutes a worst-case discharge in the context of rail transportation of petroleum oil, PHMSA has identified and analyzed the quantity released from tank cars in the major derailments involving petroleum oil that have occurred in recent years in the
FOOTNOTE 41 See Appendix B, from the Final Regulatory Impact Analysis from "HM-251: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains." END FOOTNOTE
FOOTNOTE 42 Ibid. END FOOTNOTE
However, PHMSA has not proposed in this rulemaking that the planning volume for a worst-case discharge be 500,000 gallons because we recognize that the tank car design enhancements promulgated in HM-251 would reduce the overall quantity released in a derailment scenario occurring in the future. In other words, the
Nevertheless, PHMSA recognizes that the number of tank cars loaded with petroleum oil in a train consist can vary widely and that 300,000 gallons as a worst-case discharge planning volume may not be appropriate for very large, higher-risk train configurations involving petroleum oil. For example, assuming 30,000 gallons is contained in a single tank car; a 50-tank car train carrying crude oil would carry approximately 1,500,000 gallons, whereas a 100-tank car train would carry approximately 3,000,000 gallons. Thus, PHMSA maintains that a 300,000 gallon planning volume would be appropriate for the 50-tank car train, but it would not be appropriate for the 100-tank car train, which carries substantially more petroleum oil product and as such, presents a much greater risk in the transportation system. Further, PHMSA acknowledges the existence of even larger trains (e.g., 120-tank car trains), as well as the uncertainty surrounding the number of tank cars loaded with petroleum oil that might be transported by rail in the future.
For these reasons, PHMSA has supplemented the 300,000 gallon figure to include another parameter that adequately increases the WCD planning volume for train configurations involving a greater number of tank cars and thus presenting greater risk. The parameter we propose, as a supplementation to the 300,000 gallons WCD planning volume, is the ratio of petroleum oil that could reasonably be expected to release in a derailment to the total quantity of petroleum oil carried within a train consist (i.e., the total petroleum oil lading), most easily expressed as a percentage. PHMSA maintains that a percentage of the total petroleum oil lading in a train consist can be used to identify and differentiate risk among the different types of train configurations that can reasonably be expected to transport large quantities of petroleum oil within a given response zone. Again, we have focused our analysis on the recent
FOOTNOTE 43 http://dms.ntsb.gov/pubdms/search/document.cfm?docID=425467&docketID=55926&mkey=88606. END FOOTNOTE
Furthermore, the statutory requirements of CWA state explicitly that a worst-case discharge includes a discharge resulting from fire or explosion. Per 33 U.S.C. 1321 (j)(5)(D)(iii), a response plan must "identify, and ensure by contract or other means . . . the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst-case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge." PHMSA understands this statutory language to mean that railroads must consider the total quantity of petroleum oil released from tank cars in a derailment, rather than solely the quantity of petroleum oil that does not burn off as a result of fire or explosion and remains to be recovered. Therefore, in this rulemaking, PHMSA has crafted the definition of worst-case discharge to be consistent with the statutory language set forth in 33 U.S.C. 1321 (j)(5)(D)(iii). Moreover, we hold that the worst-case discharge planning volumes used by railroads, and delineated in their comprehensive plans, must take into account the quantity of petroleum oil that is combusted in fiery or explosive derailments.
In reflection of these analyses, PHMSA proposes that the worst-case discharge for comprehensive plans be defined as follows:
Worst-case discharge means "the largest foreseeable discharge in adverse weather conditions," as defined at 33 U.S.C. 1321(a)(24). The largest foreseeable discharge includes discharges resulting from fire or explosion. The worst-case discharge from a train consist is the greater of: (1) 300,000 gallons of liquid petroleum oil; or (2) 15% of the total lading of liquid petroleum oil transported within the largest train consist reasonably expected to transport liquid petroleum oil in a given response zone."
As previously discussed, PHMSA used an average effectiveness rate achieved through HM-251 to determine the proposed 300,000 gallon WCD planning volume. However, for the proposed WCD planning volume based on the percentage of the total petroleum oil lading within a train consist, PHMSA has not incorporated the average effectiveness rate because we believe that this percentage should be more conservative such that very large train configurations (e.g., 135-tank car trains) would have an appropriate WCD planning volume commensurate with their presentation of increased risk within the rail transportation system. As an illustration of the WCD definition and its application to WCD planning volumes for use in comprehensive OSRPs, consider a 50-tank car train and a 100-tank car train carrying petroleum oil. For the 50-tank car train, the worst case planning volume would be 300,000 gallons, since 300,000 gallons is greater than 15% of the total petroleum oil lading carried by that train (i.e., 225,000 gallons, assuming each tank car carries 30,000 gallons). For the 100-tank car train, the worst case planning volume would be 450,000 gallons, since 15% of the petroleum oil carried by that train, or 450,000 gallons, is greater than 300,000 gallons. PHMSA maintains that distinguishing larger train configurations from relatively smaller ones is appropriate given differences in risk, and we further maintain that this calculation is to be used to determine the "planning volume" for worst-case discharges within a given response zone. It is not re-calculated for each and every train in operation within a given response zone; rather, it is based on the largest train configuration that can reasonably be expected to transport petroleum oil within a response zone. At this time, we do not expect that the proposed worst-case discharge definition will result in benefits or costs. Our preliminary analysis assumes railroads will contract with USCG-certified OSROs to comply with the proposed response and mitigations activities requirements in
FOOTNOTE 44 http://www.uscg.mil/hq/nsfweb/nsf/nsfcc/ops/ResponseSupport/RRAB/osro_files/0313Classification%20Guidelines.pdf END FOOTNOTE
We generally agree with AAR and ASLRRA with respect to the overall plan format. Our proposal for requirements includes an information summary, core plan, response zone appendices, clarification of which elements are necessary for a minimum consistency with the NCP and applicable ACP, and a separate training section. We also proposed to allow use of an Integrated Contingency Plan (ICP) to provide flexibility, in recognition that railroads may additionally be subject to the OSRP requirements of other agencies. We also added requirements to describe the railroad's response management system which will help clarify the roles of responders and require use of National Incident Management System (NIMS) and Incident Command System (ICS) for common response terminology. Use of a common terminology is also necessary for the railroad to be able to certify compliance with the NCP and ACP. The importance of describing the management response system and use of NIMS was highlighted by first responders in the "Crude Oil Rail Emergency Response Lessons Learned Roundtable Report." We further request questions on whether the Qualified Individual (QI) should be trained to the Incident Commander level or whether requiring training in use of plan is sufficient.
We further note that use of dispersants is generally not authorized by the NCP or ACP for use on inland oil discharges. We specify that the plans must identify the procedures to obtain any required federal and state authorization for using alternative response strategies such as in-situ burning and/or chemical agents as provided for in the applicable ACP and subpart J of 40 CFR part 300. We disagree with commenters that requirements for dispersants should be further addressed by DOT.
For equipment testing and drills, we proposed requirements which harmonize with OPS. Specifically, we agree with commenters who recommended the National Preparedness for Response Exercise Program (PREP) as the appropriate standard for drills. On
FOOTNOTE 45 81 FR 21362. END FOOTNOTE
We disagree with commenters who recommend adopting requirements which are duplicative of other regulations, such as shipping paper manifest information or the proposed information sharing requirements. As described in greater detail in Section II, Subsection D ("Related Actions"), on
We agree with commenters that highlighting the need to address adverse weather conditions is important for both response activities and under the statutory requirements. Therefore, we have added a definition for adverse weather, and clarified that equipment must be suitable for adverse weather conditions and planning must incorporate adverse weather preparedness.
We agree with commenters that strengthening the communication requirements is important. Recent incidents and input from first responders in the "Crude Oil Rail Emergency Response Lessons Learned Roundtable Report" highlight the need for better communication procedures. Our proposed changes once again are similar to the OPS, as well as the AAR and ASLRRA, by specifying the need to provide checklists which clarify the order and type of notification to be provided.
Overall, our proposed changes build on the existing framework for OSRPs both in the current regulations and the requirements by other federal agencies. The proposed requirements provide greater specificity than the current requirements, but still allow sufficient flexibility for railroads to tailor the requirements to the unique needs of their organizations and the diverse routes covered by their plans. Most importantly, the proposed changes clarify the need for better communication, identification of resources, and information.
D. Approval of Comprehensive Oil Spill Response Plans
In the ANPRM, PHMSA asked the public if any costs would be incurred in submitting comprehensive OSRPs to the
In general, industry stakeholders requested that there be one approving federal agency for comprehensive OSRPs, citing concerns about costs, security, and the clarity of the approvals process. In general, environmental groups, government representatives and other commenters supported additional oversight, including oversight or review by federal agencies, states, SERCs, LEPCs, and/or the public. Commenters also had different suggestions as to which federal agency should ultimately fulfill the responsibilities of approval.
For example, AFPM has stated, ". . .only one agency should ultimately review and comment on a completed comprehensive OSRP. Review by multiple agencies is both duplicative and time-consuming . . . PHMSA is the appropriate agency to provide review . . . [and] there are concerns that a multi-agency review may increase the security risk of OSRPs being disseminated to individuals or groups who should not be privy to this information."
Without expressing support for a particular agency to approve comprehensive OSRPs, API has submitted a similar comment, stating, "[w]hile other agencies, such as USCG and
AAR also holds that only one federal agency should ultimately be responsible for the approval process, but suggests that FRA be the agency that undertakes this. On behalf of its member railroads, AAR states, "[t]he railroads offer that OSRPs should . . . be submitted only to FRA, as primary regulator for rail safety issues, for review." AAR further specifies that PHMSA already has rail-specific regulations that stipulate FRA enforcement responsibilities.
Some commenters have given considerations related to the approval process itself. DGAC states, ". . . if prior FRA approval is required before shipments can be made, serious and costly economic impacts could be expected. Delays in shipments would have a significant negative economic impact on the
States and environmental organizations highlighted the importance of approval as a requirement under the statute. For example,
[a]lthough 49 CFR 130.31 requires comprehensive response plans to be submitted to the FRA, there is no provision for the FRA to review and approve plans, which calls into question why these plans are required to be submitted. The FRA would be better prepared to identify deficient response plans if it had a program to thoroughly review and approve each plan before carriers are permitted to transport petroleum oil products. In comparison to other DOT regulations for oil transportation in pipelines, an operator may not handle, store, or transport oil in a pipeline unless it has submitted a response plan for PHMSA approval. The
California's Office of Spill Prevention Response and
Commenters have suggested that the approval process include review by several federal agencies. For example, safety consultant
With an emphasis on NEPA and the Endangered Species Act,
Thus, several commenters have advised that the review and approval of comprehensive OSRPs include multiple federal agencies, such as the USCG,
Some commenters suggested that state-based approval processes be adopted. For example, the
In regard to state-based approval processes, some commenters have proposed that state approval be coordinated through SERCs, TERCs, and/or LEPCs. For example,
Other commenters from the concerned public and departments within city and state governments highlighted state legislation related to oil spill response plans and request that PHMSA provide assurance that such legislation will not be preempted by this rule. Joint comments from the
Some commenters have indicated that the general public should be allowed to review and comment on OSRPs and as a result, be involved in the plan approval process.
Commenters have suggested terms of validity for plan approval. Safety consultant
Discussion of Comments: Approval of Plans
We agree with industry commenters that mandating multiagency approval could cause undue delays, burdens, and security risks. Furthermore, 33 U.S.C. 1321 (j)(5)(E) requires a plan that meets the minimum requirements to be approved. Therefore, we disagree with the premise that mandating multi-agency or public participation would provide enough value in an explicit approval process to justify the increased burden and potential delay. Furthermore, the resources for mandatory consultation with other agencies and public participation could potentially divert resources from safety activities. However, we encourage the comments of Federal, State, and local agencies and tribal authorities addressing the proposed requirements for the development of OSRPs.
As FRA is the agency which has delegated authority to approve oil spill response plans for rail tank cars, we are proposing FRA as the sole agency required to approve railroad comprehensive oil spill response plans. Under 33 U.S.C. 1321 (j)(5)(D)(vi), spill response plans must "be resubmitted for approval of each significant change." However, we agree with commenters that ensuring plan consistency with the NCP and ACP is important. We are clarifying that FRA may consult with the
The current requirements for plan submission are under
As requested by commenters, we are further clarifying the submission and approval procedures to align with both the statute and other federal agencies. AAR and ASLRRA submitted proposed regulatory text with many similarities to PHMSA OPS requirements. We have proposed to adopt many requirements similar to the OPS submission and approval under sections 194.119 and 194.121. Among other changes, we are clarifying that electronic copies are the preferred format. At this time, railroads may mail copies of plans contained on CD-ROMs, USB flash drive, or similar electronic formats. FRA may make other versions of electronic submission available in the future. We are requiring railroads to review plans every five years, or after an incident requiring use of the plan occurs. Plans must also be updated if a significant change occurs. Significant changes must be approved by FRA. Significant changes are those that affect the operation of the plan, such as establishment of a new railroad route not covered by the previously approved plan, or changing the name of the emergency response organizations identified in the plan.
In accordance with both the statute and requests from commenters, we have clarified the process for railroads to respond to alleged deficiencies in the plan identified by FRA and to allow railroads to continue to operate after they have submitted the plan and are awaiting approval decision. We are further clarifying that railroads may follow the existing procedures under section 209.11 in the FRA regulations to request confidential treatment for documents filed with the agency, provided the information is exempt by law from public disclosure (e.g., exempt from the mandatory disclosure requirements of the Freedom of Information Act (5 U.S.C. 552), required to be held in confidence by 18 U.S.C. 1905). Under this process, FRA retains the right to make its own determination in this regard. Therefore, this change clarifies the process to comply with existing laws and confidential treatment will not be extended to other information in the plan which is not currently exempt under other existing laws. PHMSA provides similar procedures for similar requests for confidential treatment of documents under
E. Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans
In the ANPRM, PHMSA asked the public the following question: "Should PHMSA require that the basic and/or the comprehensive OSRPs be provided to State Emergency Response Commissions (SERCs), Tribal Emergency Response Commissions (TERCs), Fusion Centers, or other entities designated by each state, and/or made available to the public?" Commenters submitted a variety of comments regarding the distribution of OSRPs and relayed ideas about which entities should be provided with or provided access to comprehensive OSRPs. This distribution might include SERCs, TERCs, Fusion Centers, other state entities, or the general public.
The majority of commenters support the distribution of OSRPs to SERCs or other emergency response organizations. Among the commenters in support are: The
Other commenters have expressed support for the distribution or disclosure of OSRPs to SERCs or other appropriate emergency response organizations, but expressed concerns about security risks and the distribution or disclosure of OSRPs to the general public. Among these commenters are: AFPM, AAR, and ASLRRA.
With regard to security concerns, AFPM has said, "[a]lthough communications are vital . . . SSI [sensitive security information] should be disclosed to only a limited group of people on a "need to know" basis . . . Broader dissemination raises significant security concerns in light of the possible targeting of rail by terrorist and others." AAR and ASLRRA have provided a similar comment on this issue, stating, "[i]f required by DOT to share very specific OSRP information with the SERCs, the railroads are concerned that a potential bad actor would be able to obtain the information . . . Releasing to the public the worst case scenarios and the available response resources and equipment in the OSRPs could provide a bad actor with key information crucial to planning environmental terrorism activities." Thus, while acknowledging the potential value of distributing OSRPs, industry commenters have expressed security concerns and advised there should be limitations imposed on the distribution of OSRPs and certain types of information (i.e., SSI).
AAR and ASLRRA have also articulated that the distribution of OSRPs, even to bona fide emergency response organizations such as SERCs, could result in further dissemination to the general public. Regarding this point, AAR and ASLRRA have referred to the example of Emergency Order Docket No. DOT-OST-2014-0067, which required railroads to make crude oil routing information available to SERCs. AAR states, "[w]hile the railroads do not believe it was DOT's intention, the EO has often resulted in the information it requires railroads to disclose to SERCs being made publically available." AFPM has voiced similar concerns. Thus, according to some industry stakeholders, security concerns would remain even if the distribution of OSRPs were limited to SERCs or other appropriate emergency response organizations.
Other commenters have stated that OSRPs would or would not be restricted due to security concerns.
Commenters have also relayed that the entities developing OSRPs may have rights of confidentiality (i.e., OSRPs are "proprietary"). In relating the context of the
On the issue of confidential business rights, other commenters have stated that OSRPs should or would not be confidential business information. Accordingly, Harvard Law School's Emmett Environmental Law and Policy Clinic, along with partner commenters, have said, "[m]andatory disclosure only to federal officials, as is currently the case, is inadequate given that state and local authorities will usually be the first responders to an accident and bear the burden of ensuring preparedness and the consequences of failing to do so. PHMSA should also mandate public disclosure of OSRPs. The contents of such plans will not be . . . confidential business information."
Thus, many commenters suggested that OSRPs be made available to the public. For example, the Delaware Riverkeeper Network has commented, "[t]hese plans should also be made available to the public via an easily accessible web platform. The Web site should include everything interested parties need or want to know and everything an emergency response team would want to tell them." Other commenters have supported making OSRPs available to the general public, such as: The Riverfront Park Association; the Center for Biological Diversity; the Waterkeeper Alliance; and Harvard Law School's Emmett Environmental Law and Policy Clinic.
A few commenters have agreed that plans can be made available to the public, but clarified that this disclosure would include only non-SSI material. Accordingly,
On this topic, a safety consultant,
Some commenters have asked that the distribution of plans involve processes beyond the provision of OSRPs to appropriate emergency response entities. For example, the Oklahoma OHMERC has said, "[t]he delivery should be more than mailing a plan to the LEPC, the railroad should present the plan in person so that local emergency response planners and responders have the opportunity to ask questions and discuss roles under the OSRP." In addition, the Delaware Riverkeeper Network has expressed that "meetings should be used to educate community members about evacuation plans and how to access up-to-date information in the event of an emergency." Further, The Response Group has asked that railroad companies be required to "follow the precepts that PHSMA expects pipeline companies to follow and align those requirements . . . [with] API RP 1162." /46/ Thus, multiple commenters have stated that plan distribution should involve more than the provision of OSRPs to specific entities; it could also include meetings with local communities, as well as presentations delivered to local emergency responders.
FOOTNOTE 46 Federal pipeline safety regulations (49 CFR 192.616 and 49 CFR 195.440) require pipeline operators to develop and implement public awareness programs that follow the guidance provided by the
Discussion of Comments: Confidentiality/Security Information
Transparency is important to PHMSA as the agency provides resources to the emergency response community in many forms. As described in the Section II, Subsection D-5 ("Stakeholder Outreach"), PHMSA and the railroads have been engaged in multiple activities and partnerships to take a comprehensive approach to providing training and emergency response information resources about the hazard of crude oil. We disagree however that providing the entire OSRP to emergency responders will lead to better preparedness. Some elements of the OSRP may be sensitive for security, business, or privacy reasons. Other elements are specific to railroad operations, and will not inform the actions of first responders or communities.
To ensure emergency responders have pertinent information from plans, we are proposing that information describing the response zones and contact information for the qualified individual are provided to SERCs and TERCs as part of the information sharing requirements proposed in section 174.312. This allows emergency responders to understand which communities are included in the same response zone and the appropriate contact for the OSRP information at the railroad. Adding these requirements takes an integrated approach to the regulations and ensures the different types of emergency response information will be presented in a cohesive, usable format. We believe that the current requirements to notify fusion centers under routing information, and the proposed information sharing requirements for SERCs and TERCs described under Section II, Subsection E ("HHFT Information Sharing Notification") will work cumulatively to provide emergency response organizations with the complete information they need about a route to prepare for flammable liquids transiting their communities without compromising security. In addition, by clarifying requirements for the OSRP (including notification procedures and the roles and responsibilities of individuals within the plan), railroads will be able to more quickly disseminate the information and conditions specific to the incident to appropriate local, state, and Federal agencies.
F. Comprehensive Oil Spill Response Plan Costs
In the ANPRM, PHMSA asked the public what costs the regulated community would incur in order to: (1) Develop comprehensive OSRPs; (2) remove or remediate discharges; and (3) conduct training, drills and equipment testing. PHMSA also asked about commenters' assumptions and requested that commenters provide detailed estimates.
With regard to plan development costs, two commenters provided estimates of labor costs; however, PHMSA did not receive any detailed cost estimates. The majority of commenters chose to emphasize other considerations that they deemed to be relevant in estimating the costs of OSRPs.
AAR and ASLRRA, in particular, have stated that PHMSA would need to supply more information about plan requirements in order to develop detailed cost estimates. AAR states, "[w]ithout further guidance from PHMSA . . . the railroads are unable to provide more specific cost estimates." However, as a general estimate, AAR and ASLRRA estimate that a "petroleum crude oil spill response plan, without equipment cost included, could cost a railroad anywhere from $100,000-$500,000."
Other commenters provided general cost estimates for plan development. For example, the Response Group has stated that labor would cost $100 per hour and that a new plan would require approximately 120 hours of work. This yields $12,000 as the labor cost component of the overall plan development costs per railroad.
As previously stated, several commenters did not supply cost estimates but chose to draw attention to other considerations, such as the estimated cost of cleaning up oil spills. For example, the Delaware Riverkeeper Network has articulated, "[t]he costs incurred to create and implement a comprehensive OSRP . . . should be considered the cost of doing business, and are minimal when compared to the costs incurred to clean up and attempt to remedy crude rail accidents. For example, in 2013, over 1.15 million gallons of crude oil were spilled in over 35 accidents, and clean-up costs of one accident alone are estimated to total at least $180 million." In addition, a concerned member of the public has said, "[f]or consideration of costs (see advance notice items 4, 5, and 6), the agency should include costs to communities and their economies from crude oil spills."
In addition to AAR and ASLRRA, other commenters have expressed that they were not certain of the costs of developing a comprehensive OSRP. For example,
Some commenters have stated that the cost of developing a comprehensive OSRP would be "nominal" or "not significant" since railroads are already compliant with many of the current OSRP requirements under part 130, including the requirements for a basic OSRP. For example, the
In addition to asking the public about plan development costs, PHMSA inquired about the costs incurred to remove discharges. PHMSA asked about the placement of equipment along the track, the types of equipment needed to remove or contain discharges, and the maximum time needed to contain a worst-case discharge. Some commenters have suggested maximum response times, as well as limited cost estimates, but overall the comments received lack detail and do not identify the range of costs that would be incurred to remove discharges. In addition, commenters have specified some types of equipment, such as containment booms, work boats, skimmers, and foam concentrate, but the commenters' listing of equipment does not appear to be exhaustive.
With regard to discharge removal, AAR and ASLRRA have stated that equipment costs can be substantial. Without providing detailed cost information, AAR has cited that deploying a single containment boom could cost $15,000. AAR has not included other information regarding the costs of response resources and equipment.
Safety consultant
NASTTPO has not specified any types of equipment or cost estimates, but has offered relevant assumptions regarding planning and the use of response resources. The commenter states, "[w]e presume that rail carriers should be able to mobilize contract responders to any point on their system within 4-6 hours dependent on weather. Contractors that provide such services are common and the trucking industry along with insurance carriers routinely pre-contract for these services." Thus, according to this commenter and partner commenters, contracting for response resources is "routine" and as a result, industry stakeholders should be able to identify response providers and are aware of the costs involved.
New York State and the
The City of Seattle has estimated $20,000 as the cost of air monitoring and personal protection equipment (PPE). The commenter states that these costs are not currently budgeted by Seattle Public Utilities, which, according to the commenter, is one of the city's agencies that would respond to an incident.
The Delaware River and Bay Oil Spill Advisory Committee has offered estimates of the capital investments needed to prepare for a "debris mission." The commenter states, "the capital cost to stand up a floating debris collection mission could be in the range of $14 million to $21 million." According to the commenter, city or state authorities would undertake these capital investments, so it is not clear if these costs would be included in cost estimates for a comprehensive OSRP.
With respect to the costs of cleaning up oil spills, The League of California Cities has stated, "[m]ost importantly, these plans [OSRPs] should provide for the obligation to pay for recovery, including all required clean-up." Other commenters have communicated that the costs of discharge removal are "minimal" and are the "cost of doing business." Thus, these commenters seek to stress that the costs to communities that experience an oil spill can be large and must be considered alongside the costs to implement OSRPs.
In the ANPRM, PHMSA also asked the public to comment on training costs, such as the costs of conducting drills or testing equipment. In addition, many commenters discussed which entities would be responsible for providing training or ensuring that training is adequately funded. Commenters have also supplied some basic cost estimates for different components of training.
AAR and ASLRRA have stated that training costs can be substantial and estimated that a single training exercise or drill could cost between $60,000 and $150,000. AAR and ASLRRA have also stated, "[w]ithout further guidance from PHMSA . . . the railroads are unable to provide more specific cost estimates."
New York State has identified various costs associated with the training of first responders and emergency personnel. The commenter has cited "the costs of providing staffing (backfills) for career fire departments and . . . consumables required for effective and realistic training such as training foam. Staffing backfill costs will vary by jurisdiction but can be significant, and if not addressed, limit participation of critical response agencies with a corresponding negative impact upon effectiveness." The commenter has not provided any cost estimates related to backfills or consumables.
Some commenters have suggested that the cost of training be funded by railroads. For example, the
The League of California Cities has made a similar comment, stating, "[f]ully-funded regular training programs that cover the cost of training, including backfill employee costs, to ensure that first responders are trained, and remain trained, on up-to-date procedures to address the unique risks posed by these shipments." In this case, the commenter has not specified the source of this funding.
Other commenters have suggested that rail carriers should not be expected to pay for the costs of training local first responders. NASTTPO has expressed, "[w]e have no expectation that the rail carriers would be paying for the attendance of local first responders at training events and exercises." The commenter has also expressed that, since the rulemaking should not require railroads to pay for the training of local first responders, the costs imposed on the regulated community as a result of training requirements should be "nominal." In agreement, the
Oklahoma's OHMERC has similarly stated that railroads should not be expected to pay the costs of training local first responders, but emphasizes that "given the fact that volunteer fire fighters have other job obligations, training would be most effective delivered locally."
The Dangerous Goods Advisory Council has suggested that ensuring training among emergency responders will be difficult due to practical and financial concerns. DGAC has stated, "DGAC supports the training of emergency responders in how to properly respond to hazardous materials incidents. However, it may be difficult, time consuming, and costly to individually train each emergency response organization in the areas through which a `key' or `unit' train transporting crude oil travels. It is unlikely that every local emergency response organization located along the route could afford to develop and maintain the necessary resources to respond to significant incidents involving crude oil derailments." Given this concern, the commenter holds that "regional response teams" may be an effective alternative.
Various commenters have suggested that PHMSA adopt training elements from the National Preparedness, Response and Exercise Program (PREP) guidelines, which have been developed through multi-agency participation and coordination, including DOT, USCG,
Commenters have mentioned other standards for training or equipment testing requirements. For example, Safety consultant
OSPR has suggested other training sources, such as the Hazardous Waste Operations and Emergency Response (HAZWOPER), a set of guidelines overseen by the
Given the variety of training sources and opportunities available, the National Emergency Management Association (NEMA) has suggested that DOT facilitate the creation of a standardized training curriculum. The commenter states, "
Discussion of Comments: Plan Costs
We appreciate commenters' efforts to provide initial cost considerations and estimations, despite the challenges they cited in providing data. We have incorporated commenters' cost estimates to the extent possible, but note that these estimates lacked detail and data. We further clarify that the estimated cost of the proposed oil spill response plan requirements is the cost of plan development, submission, and maintenance; contract services for OSROs; and training and exercises.
To elaborate, the costs of plan development were estimated as a function of the time and compensation that a senior railroad employee or contractor needs to develop the plan, as well as the number of response zone appendices needed in connection with the railroad's core plan. PHMSA estimated that on average it would cost a Class I railroad about $15,000 to develop a plan, it would cost a Class II railroad $8000 to develop a plan, and it would cost a Class III railroad $7000 to develop a plan. Plan submission and maintenance were also estimated as a function of the time and compensation of the employee that submits and maintains the plan. PHMSA estimated that on average it would cost a Class I railroad about $1,500 for plan submission and maintenance, it would cost a Class II railroad $800 for plan submission and maintenance, and it would cost a Class III railroad $700 for plan submission and maintenance. We estimated the cost of OSRO services by interviewing an OSRO and obtaining a range for potential retainer fees. Retainer fees may vary based on the Class (I, II, III) of the railroad as well as the number of response zones that PHMSA-OHMS expects the railroads to have. PHMSA estimated that on average it would cost a Class I railroad about $40,000 annually to retain an ORSO for each of its 8 response zones, it would cost a Class II railroad $6000 annually to retain an ORSO for each of its 2 response zones, and it would cost a Class III railroad $2500 annually to retain an ORSO for its single response zone. The costs of training are estimated as a function of the number of employees requiring training, the duration of the training in hours, and the wage rate applied. Separate from training, we have also estimated costs of exercises, such as those prescribed in PREP guidelines. Since PREP guidelines are consistent across Federal agencies, we used costs estimated by the USCG, including travel costs and additional OSRO fees for drill-related deployment of resources.
Please see the draft RIA for the quantitative aspect of this discussion and further explanation of the anticipated cost impacts of the proposed rule.
G. Voluntary Actions
In the ANPRM, PHMSA asked the public to comment on the role of industry's voluntary and current actions regarding oil spill response planning. In particular, PHMSA asked, "What, if any, aspects beyond the basic plan requirements do these plans voluntarily address?"
In regard to the information contained within basic OSRPs, commenters offered a variety of ideas, but the majority of commenters have relayed that the current knowledge base surrounding basic oil spill response plans is limited. Commenters have stated that this knowledge of basic plans is limited because many entities, including states, cities, local community groups, and some emergency response organizations, do not have access to rail carriers' basic plans. In addition, some commenters stated that they have encountered issues in coordinating with rail carriers on this issue. Further, other commenters have voiced that basic OSRPs do not provide adequate information to local first responders, even if they are communicated effectively to those responders.
The Response Group has stated, "I have never seen a current railroad oil spill response plan . . . I have developed a prototype oil spill response plan suitable for rail based upon experience with
Safety consultant
Similarly,
The City of Seattle has made a similar comment. This commenter states, "[w]ithout access to review and comment on OSRP the
Some commenters have stated that current OSRPs are not adequate, which suggests at least a familiarity with their current form and contents. For example, NASTTPO has stated, "[b]asic OSRPs are not successful as noted . . . They do not provide adequate information to local first responders even if they are communicated to those responders." OHMERC has also stated, "OSRPs should be more detailed and contain better information for responders."
AAR and ASLRRA have held a different opinion than the majority of commenters due to their unique understanding of OSRPs and industry background. Regarding current OSRPs, AAR and ASLRRA have stated, "[r]ailroads have been very proactive in emergency response planning and outreach . . ." They cited implementation of the AAR Circular OT-55, training efforts, and efforts to provide an inventory of emergency response resources. However, these comments did not include any details describing whether railroads were providing voluntary compliance with specific comprehensive oil spill response plan requirements.
In the ANPRM, PHMSA specifically asked, "[t]o what extent do current plans meet the comprehensive OSRP requirements, including procurement or contracting for resources to be present to respond to discharges?" As previously mentioned, the majority of commenters have stated that their knowledge of current OSRPs is limited due to limited access and challenges of coordination with railroads. For this reason, most commenters were unable to answer this question, as it requires an understanding of the form and contents of current OSRPs. Without this understanding, it is difficult to assess to what degree current plans have incorporated response resources contracting as would be required under the part 130 requirements for comprehensive OSRPs.
AAR and ASLRRA have addressed this question, stating, "[p]ursuant to the industry's commitment to Secretary Foxx, AAR has developed an inventory of emergency response resources along routes over which Key Crude Oil Trains operate for responding to the release of large amounts of petroleum crude oil in the event of an incident. This inventory also includes locations for the staging of emergency response equipment and, where appropriate, contacts for the notification of communities." Thus, according to this commenter, voluntary actions combined with compliance to the basic OSRPs currently required already include planning for response resources. However, these comments did not include any additional data or details describing whether railroads were providing voluntary compliance with specific comprehensive oil spill response plan requirements.
Discussion of Comments: Voluntary Actions
While we applaud the voluntary efforts railroads have taken to improve safety, they do not carry the weight of law and the extent to which these voluntary efforts meet the requirements of current comprehensive oil spill response plans is difficult to quantify based on the comments received. The Oil Pollution Act of 1990 requires the creation of oil spill response plans with specific minimum elements for "an onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone." Furthermore, voluntary actions do not carry the weight of regulations to ensure continued compliance and enforceability.
We agree with
VI. Incorporated by Reference
Section 171.7 lists all standards incorporated by reference into the HMR that are not specifically set forth in the regulations. This NPRM proposes to incorporate by reference the ASTM D7900-13 Standard Test Method for Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography, 2013, available for interested parties to purchase in either print or electronic versions through the parent organization's Web site at the following URL: http://www.astm.org/cgi-bin/resolver.cgi?D7900-13e1. The price charged for these standards to interested parties helps to cover the cost of developing, maintaining, hosting, and accessing these standards. This publication (i.e., test method) ensures a minimal loss of light ends for crude oils, containing volatile, low molecular weight components (e.g. methane) because it determines the boiling range distribution from methane through n-nonane. The specific standards are discussed in greater detail in the Section II, Subsection G. ("Initial Boiling Point Test") of this rulemaking.
VII. Section-by-Section Review
Part 130
We propose to restructure part 130 to establish the following subparts:
Subpart A--Applicability and General Requirements contains current SUBSEC 130.1-21 with minor revisions and clarifications.
Subpart B--Basic Spill Prevention and Response Plans contains current SUBSEC 130.31-33 with minor revisions to remove comprehensive plan requirements.
Subpart C--Comprehensive Oil Spill Response Plans is a new Subpart with new requirements for comprehensive oil spill response plans.
Section 130.2
Paragraph (d) is updated to show that the requirements in
Section 130.5
The introductory text is reformatted, including moving the definition for "Animal fat" to the correct alphabetical order. Definitions for "Adverse Weather," "Environmentally Sensitive or Significant Areas," "Maximum Potential Discharge," "Oil Spill Response Organization," "On-scene Coordinator (OSC)," "Response activities," "Response Plan," and "Response Zone" are added in response to commenters. Definitions for "Petroleum Oil" and "Worst-case discharge" are revised to better clarify the applicability of the terms. The term "Person" is revised to clarify railroads are included in the term. The term "Maximum Potential Discharge" is currently used in the requirements for basic plans and is currently "synonymous with Worst-Case Discharge." We are proposing to separate the definitions to facilitate the newly proposed definition for "Worst-Case Discharge" for comprehensive plans. The mailing address for the Office of Hazardous Materials Safety is updated in the note for the definition of "Liquid."
Section 130.31
This section is revised editorially to clarify that it applies to basic oil spill response plans only. References to comprehensive oil spill response plans are removed.
Section 130.33
This section is revised to clarify that it only applies to basic oil spill response plans.
Section 130.101
Establishes a new section which moves the current applicability for comprehensive oil spill response plans of 42,000 gallons per packaging from
Section 130.102
Establishes a new section for general requirements for the overall development of the comprehensive response plan and requires the plan uses the National Incident Management System (NIMS) and Incident Command System (ICS).
This section also establishes general requirements for the plan format including the development a core plan and the establishment of geographic response zones and accompanying response zone appendixes.
This section also allows for use of the Integrated Contingency Plan (ICP) format to provide greater flexibility.
Section 130.103
Establishes a new section which requires a railroad to certify in the comprehensive response plan that it reviewed the NCP and each applicable ACP and that its response plan is consistent with the NCP and each applicable ACP through compliance with a list of minimum requirements.
Section 130.104
Establishes a new section which requires a comprehensive response plan to include an information summary.
Section 130.105
Establishes a new section with requirements for the notification procedures and contact information that a railroad must include in a comprehensive oil spill response plan.
Section 130.106
Establishes a new section for railroads to describe the response and mitigation activities and the roles and responsibilities of participants in the comprehensive oil spill response plans.
Section 130.107
Establishes a new section for railroads to certify employees are trained in accordance with the requirements of this section.
Section 130.108
Establishes a new section for requirements for equipment testing and drill procedures consistent with PREP requirements for comprehensive oil spill response plans.
Section 130.109
Establishes a new section with requirements for recordkeeping, review, and submission of comprehensive oil spill response plans.
Section 130.111
Establishes a new section with the requirements and procedures to submit comprehensive oil spill response plans for approval to FRA.
Section 130.112
Establishes a new section to apply the same plan implementation requirements for comprehensive oil spill response plans formerly under in
Part 171
Section 171.7
Add paragraph 173.121(a)(2)(vi) titled "Petroleum products containing known flammable gases" stating, "Standard Test Method for Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography (ASTM D7900). The initial boiling point is the temperature at which 0.5 weight percent is eluted when determining the boiling range distribution."
Part 173
Section 173.121
Add paragraph 173.121(a)(2)(vi) titled "Petroleum products containing known flammable gases" stating, "Standard Test Method for Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography (ASTM D7900). The initial boiling point is the temperature at which 0.5 weight percent is eluted when determining the boiling range distribution."
Part 174
The authority is updated to include 33 U.S.C. 1321.
Section 174.310
Section 174.310 provides a list of the additional requirements for the operation of HHFTs. A new paragraph (a)(6) titled "Oil spill response plans" is added for clarity to provide a reference to the part 130 requirements for HHFTs composed of trains carrying petroleum oil.
Section 174.312
Part 174, subpart G provides detailed requirements for flammable liquids by rail. The HHFT Final Rule added
* A reasonable estimate of the number of HHFTs that the railroad expects to operate each week, through each county within the state or through each tribal jurisdiction;
* the routes over which the HHFTs will operate;
* a description of the hazardous material being transported and all applicable emergency response information required by subparts C and G of part 172; at least one point of contact at the railroad (including name, title, phone number and address) with knowledge of the railroad's transportation of affected trains (referred to as the "HHFT point of contact"); and
* If a route is subject to the comprehensive spill plan requirements, the notification must include a description of the response zones (including counties and states) and contact information for the qualified individual and alternate, as specified under
As proposed, railroads may provide the required notifications electronically or in hard copy and will be required to update the notifications monthly. If there are no material changes to the estimates provided in a month, proposed paragraph (a)(2)(i) would require the railroad to provide a certification of no change. As proposed, paragraph (a)(2)(iii) would require that each point of contact be clearly identified by name or title and role (e.g., qualified individual, HHFT point of contact).
Through the expansion of the applicability of the routing requirements in
PHMSA seeks public comment on all aspects of this proposal and in particular the issues identified below. When commenting, please reference the specific portion of the proposal, explain the reason for any recommended change, and include the source, methodology, and key assumptions of any supporting evidence.
1. Whether particular public safety improvements could be achieved by requiring the railroads to provide the notification proposed in paragraph
2. Whether requiring the information sharing notifications to be made by railroads directly to the TERCs is the best approach to provide information to tribal governments or whether providing a notification to the National Congress of
3. Whether there are alternative means by which PHMSA can fulfill the FAST Act's direction to establish security and confidentiality protections, where this information is not subject to security and confidentiality protections under Federal standards.
VIII. Regulatory Review and Notices
A. Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures
This NPRM is considered a significant regulatory action under section 3(f) of Executive Order 12866 and was reviewed by the Office of Management and Budget (OMB). It is also considered a significant regulatory action under the Regulatory Policies and Procedures order issued by DOT (44 FR 11034; February 26, 1979). PHMSA has prepared and placed in the docket a draft Regulatory Impact Assessment addressing the economic impact of this proposed rule.
Executive Orders 12866 ("Regulatory Planning and Review") and 13563 ("Improving Regulation and Regulatory Review") require agencies to regulate in the "most cost-effective manner," to make a "reasoned determination that the benefits of the intended regulation justify its costs," and to develop regulations that "impose the least burden on society." Executive Order 13610 ("Identifying and Reducing Regulatory Burdens"), issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies. DOT believes that streamlined and clear regulations are important to ensure compliance with important safety regulations. As such, the Department has developed a plan detailing how such reviews are conducted.
Additionally, Executive Orders 12866, 13563, and 13610 require agencies to provide a meaningful opportunity for public participation. Accordingly, PHMSA invites comments on these considerations, including information to improve the estimates of costs and benefits; alternative approaches; and relevant scientific, technical, and economic data. These comments will help PHMSA evaluate whether the proposed requirements are appropriate. PHMSA also seeks comment on potential data and information gathering activities that could be useful in designing an evaluation and/or retrospective review of this rulemaking.
The proposed rule became necessary due to relatively recent expansions in
The
FOOTNOTE 47 http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_NUS-NUS_MBBL&f=M END FOOTNOTE
FOOTNOTE 48 http://www.eia.gov/todayinenergy/detail.cfm?id=20592. END FOOTNOTE
As of April 2016, the Bakken region of the
FOOTNOTE 49 Information regarding oil and gas production is available at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2. END FOOTNOTE
FOOTNOTE 50 EIA "
Expansion in oil production in
FIGURE 1:
See Illustration in Original Document.
Figure 2 shows the growth in
FIGURE 2:
See Illustration in Original Document.
Rail accidents have risen along with the increase in crude oil production and rail shipments of crude oil relative to the 2000s. Figure 3 below shows this rise. /51/
FOOTNOTE 51 Source: STB Waybill Sample and PHMSA Incident Report Database. END FOOTNOTE
FIGURE 3:
See Illustration in Original Document.
Based on these train accidents, the expectation of continued domestic crude oil production, and the number of train accidents involving crude oil, PHMSA maintains that improved oil spill response planning is essential to protecting the environment against the risks of derailments involving large quantities of petroleum oil.
PHMSA has identified several recent derailments to illustrate the circumstances and consequences of derailments involving petroleum oil transported in higher-risk train configurations:
For example, on December 30, 2013, a train carrying crude oil derailed and ignited near
These derailments of HHFTs transporting crude oil have resulted in releases of petroleum oil that harmed or posed a threat of harm to the nation's waterways. Of note here is Safety Recommendation R-14-5, which recommended that PHMSA revise the spill response planning thresholds prescribed in 49 CFR part 130 to require comprehensive OSRPs that effectively provide for the carriers' ability to respond to worst-case discharges resulting from accidents involving unit trains or blocks of tank cars transporting oil and petroleum products. /52/ PHMSA developed the revisions included in this NPRM in response to
FOOTNOTE 52
On June 17, 1996, DOT's Research and Special Programs Administration (RSPA) published a final rule issuing requirements that sought to meet the intent of the Federal Water Pollution Control Act (Clean Water Act; 61 FR 30533) and Oil Pollution Act of 1990 (see 33 U.S.C. 1321). This rule adopted requirements for packaging, communication, spill response planning, and response plan implementation intended to prevent and contain spills of oil during transportation. Under these current requirements, railroads are required to complete a basic OSRP for oil shipments in a package with a capacity of 3,500 gallons or more, and a comprehensive OSRP is required for oil shipments in a package containing more than 42,000 gallons (1,000 barrels).
Currently, all of the rail community that transports oil, including crude oil transported as a hazardous material, is subject to the basic OSRP requirement of 49 CFR 130.31(a) since most, if not all, rail tank cars being used to transport crude oil have a capacity greater than 3,500 gallons. However, a comprehensive OSRP for shipment of oil is only required when the quantity of oil is greater than 42,000 gallons per tank car. Accordingly, the number of railroads required to have a comprehensive OSRP is much lower, or possibly non-existent, because a very limited number of rail tank cars in use would be able to transport a volume of 42,000 gallons in a car. /53/ Thus, the existing regulatory framework for basic plans in part 130 constitutes the regulatory baseline and PHMSA anticipates that many railroads are likely to meet the basic plan requirements under part 130.
FOOTNOTE 53 The 2014 AAR's Universal Machine Language Equipment Register numbers showed five tank cars listed with a capacity equal to or greater than 42,000 gallons, and none of these cars were being used to transport oil or petroleum products. END FOOTNOTE
In addition, many railroads may voluntarily exceed the minimum standards set forth by basic plans. Given that similar oil spill response planning requirements are already in place for facilities, pipelines, and vessels, PHMSA anticipates that response resources are currently available across the
PHMSA's preliminary analysis indicates that the planning and response baseline currently provides for a level of OSRO coverage and response resource availability that is consistent with the proposed rule's response timeframe of 12 hours. In the aggregate, PHMSA-OHMS could not identify any rail routes within the continental
In summary, the proposed rule would expand the applicability of comprehensive OSRPs based on thresholds of crude oil that apply to an entire train consist. Specifically, the proposed rule would expand the applicability for OSRPs so that no person may transport a single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist unless that person has implemented a comprehensive OSRP. Furthermore, this NPRM proposes to require railroads to share additional information with state and tribal emergency response organizations (i.e. SERCs and TERCs) to improve community preparedness and to incorporate the voluntary use of the IBP test (ASTM D7900) to determine classification and packing group for Class 3 Flammable liquids. /54/
FOOTNOTE 54 The ASTM D7900 is not currently aligned with the testing requirements authorized in the HMR forcing shippers to continue to use the testing methods authorized in
In the sections that follow, we outline the costs of OSRPs and information sharing provisions, as well as the breakeven analysis we developed in order to proactively generate a benefits outlook for this rule. The provision to incorporate by reference ASTM D7900 is not expected to impose costs on the regulated community; thus, we estimate no quantitative benefits for that particular provision.
Costs
Each railroad subject to the proposed rule must prepare and submit a comprehensive OSRP that includes a plan for responding, to the maximum extent practicable, to a worst-case discharge and to a substantial threat of such a discharge of oil. The OSRP must also be submitted to the FRA, where it will be reviewed and approved by FRA personnel.
The following entities would be subject to the comprehensive plan requirements in the proposed rule:
1. Any railroad transporting any liquid petroleum or non-petroleum oil in a quantity greater than 42,000 gallons per packaging must submit a comprehensive plan meeting the requirements of this subpart.
2. Any railroad transporting any single train carrying 20 or more tank cars of liquid petroleum oil in a continuous block or 35 or more of such cars in a single train must submit a comprehensive plan.
a. In determining number of tank cars, the railroad is not required to include tank cars carrying mixtures of petroleum oil not meeting the criteria for Class 3 flammable or combustible hazardous material in 49 CFR 173.120 or containing residue.
3. A railroad meeting the requirements for a comprehensive plan need not submit a plan if otherwise excepted in 49 CFR 130.2(c).
For determining the entities that would be affected by the proposed threshold, PHMSA used the definition of "high hazard flammable train" (HHFT) established in the "Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains--Final Rule" published on May 8, 2015. /55/ PHMSA narrowed the affected entities to only include railroads that transport crude oil and, in consultation with FRA, revised the estimated number of Class III carriers that would be subject to the rulemaking. Based on this assessment, PHMSA estimates there are 73 railroads (7 Class I, 11 Class II, and 55 Class III) that would be subject to this proposed rulemaking. In addition, PHMSA evaluated several alternatives related to the threshold quantities that trigger the need for a comprehensive plan in order to develop a range for the entities affected by the OSRP provisions proposed in this rule. The results of that analysis are presented further in the draft RIA, available in the docket for this rulemaking.
FOOTNOTE 55 80 FR 26643, pp 26643-26750. May 8, 2015. END FOOTNOTE
These estimates were derived for the purpose of estimating the costs and benefits associated with the proposed rule. PHMSA believes that the approach used represents a conservative estimate for the number of affected entities and specifically solicits comment on the approach and estimated values used in this analysis.
The universe of affected entities for the information sharing requirements is different than the number of entities affected under the comprehensive response plan requirement. The applicability of this requirement is derived from the information published in the HM-251 Final Rule; specifically, the definition of a high-hazard flammable train (HHFT) and the information sharing portion of the routing requirements of that final rule. The universe of affected entities for this provision includes all HHFTs transporting crude petroleum oil and ethanol, or 178 railroads (7 Class I, 11 Class II, and 160 Class III). For purposes of assessing costs for this provision, however, PHMSA determined there should be no additional costs for Class I railroads to comply with this proposed revision per the AAR Circular OT 55-O revision on January 27, 2015, which required AAR members to provide bona fide emergency response agencies or planning groups with specific commodity flow information covering all hazardous commodities transported through the community for a 12-month period in rank order. We assume this includes the proposed information to be shared with SERCs and TERCs as required in this proposed rule. In addition, on May 7, 2014, DOT issued an Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067 /56/ that required each railroad transporting 1,000,000 gallons or more of Bakken crude oil in a single train in commerce within the
FOOTNOTE 56 http://www.dot.gov/briefing-room/emergency-order. END FOOTNOTE
Table 11 provides a summary of the estimated per carrier cost associated with the proposed rule requirements for response plans and information sharing. For purposes of this analysis, PHMSA has identified several categories of costs related to the development of a comprehensive response plan. Those costs include: Plan development, submission, and maintenance; contract fees for designating an OSRO; training and drills; and plan review and approval costs to the Federal government. For additional information about the development of these cost estimates, see the draft RIA.
Table 11--Undiscounted Unit Cost per Railroad by Railroad Class Category Frequency Railroad Unit cost per carrier Plan Development Once every 5 years Class I $14,777 Class II 8,128 Class III 7,019 Plan Maintenance Annual Class I 1,478 Class II 813 Class III 702 Plan Submission Once every 5 years Class I 20 Class II 20 Class III 20 OSRO Fee Annual Class I 40,000 Class II 6,000 Class II 2,500 Training and Drills Varies Class I 65,203 Class II 41,559 Class III 27,373 Information Sharing Year 1 All Railroads 7,589 Annual All Railroads 2,319
For purposes of this analysis, PHMSA assumed a 10-year timeframe to outline, quantify, and monetize the costs and benefits of the proposed rule and to demonstrate the net effects of the proposal. Table 12 provides a summary of the undiscounted costs by year for this 10-year period by railroad class, and Table 13 provides a summary of the undiscounted costs by provision for this 10-year period.
Table 12--Summary of Undiscounted 10-Year Costs by Railroad Class Oil spill response plans Information sharing Year Class I Class II Class III All Total railroads 1 $850,342 $621,706 $2,068,728 $1,076,029 $4,616,806 2 416,246 272,731 1,165,012 384,558 2,238,547 3 416,749 273,465 1,168,636 387,477 2,246,327 4 417,257 274,208 1,172,303 390,430 2,254,198 5 865,737 635,420 2,111,227 393,418 4,005,803 6 418,293 275,720 1,179,767 396,441 2,270,220 7 418,820 276,489 1,183,565 399,499 2,278,373 8 419,353 277,267 1,187,408 402,594 2,286,622 9 419,892 278,055 1,191,296 405,725 2,294,969 10 886,026 653,493 2,167,234 408,894 4,115,646 Total 5,528,716 3,838,553 14,595,175 4,645,065 28,607,509
Table 13--Summary of 10-Year Costs by Provision (Undiscounted) Year Plan Plan Plan OSRO fees development maintenance submission 1 $578,907 $57,891 $1,421 $483,500 2 0 58,328 0 483,500 3 0 58,771 0 483,500 4 0 59,219 0 483,500 5 596,719 59,672 1,465 483,500 6 0 60,130 0 483,500 7 0 60,594 0 483,500 8 0 61,064 0 483,500 9 0 61,539 0 483,500 10 620,193 62,019 1,523 483,500 Total 1,795,818 599,227 4,409 4,835,000
Table 13--Summary of 10-Year Costs by Provision (Undiscounted) Year Training and Information Total drills sharing 1 $2,419,058 $1,076,029 $4,616,806 2 1,312,161 384,558 2,238,547 3 1,316,579 387,477 2,246,327 4 1,321,049 390,430 2,254,198 5 2,471,029 393,418 4,005,803 6 1,330,149 396,441 2,270,220 7 1,334,779 399,499 2,278,373 8 1,339,464 402,594 2,286,622 9 1,344,205 405,725 2,294,969 10 2,539,517 408,894 4,115,646 Total 16,727,990 4,645,065 28,607,509
Table 14 provides a summary of the total and annualized costs by railroad class discounted at a 3 and 7 percent rate.
Table 14--Summary of Undiscounted and Discounted Total and Annualized Costs Class of railroad Undiscounted 3% Discount rate 10 Year Annualized 10 Year Annualized OSRPs Class I $5,528,716 $552,872 $4,861,419 $569,907 Class II 3,838,553 383,855 3,374,946 395,647 Class III 14,595,175 1,459,518 12,825,770 1,503,572 Information Sharing All Railroads 4,645,065 464,506 4,159,026 487,565 Total 28,607,509 2,860,751 25,221,160 2,956,689
Table 14--Summary of Undiscounted and Discounted Total and Annualized Costs Class of railroad 7% Discount rate 10 Year Annualized OSRPs Class I $4,169,222 $593,603 Class II 2,894,820 412,157 Class III 10,987,301 1,564,344 Information Sharing All Railroads 3,650,832 519,796 Total 21,702,175 3,089,901
Based on this cost analysis, PHMSA believes that the primary costs drivers for this proposed rule are the annual fees associated with the OSRO contracts, the annual training and drill requirements, and the information sharing provisions.
PHMSA solicits comment on the approach and estimated costs used in this analysis, as well as the assumptions and estimates used in these particular costs categories.
Benefits
The proposed response plan requirements are designed to reduce the magnitude and severity of spills, thereby reducing the environmental damages and potential human health impacts that spills may cause. PHMSA faced data uncertainties that limited our ability to estimate the benefits of this proposed rule. Instead, PHMSA performed a breakeven analysis by identifying the number of gallons of oil that the NPRM would need to prevent from being spilled in order for its benefits to at least equal its estimated costs. The analysis estimates that each prevented gallon of oil spilled yields social benefits of $211. Additional benefits may also be incurred due to ecological and human health improvements that may not be captured in the value of the avoided cost of spilled oil. These issues are discussed in more detail in the accompanying draft RIA, and the reader is referred to that document for more detail. PHMSA specifically solicits comment on both the monetized and non-monetized benefits assessed in this analysis.
In order to assess the baseline conditions that would be affected by the proposed rule, PHMSA evaluated data provided in the Hazardous Material Incident Reports Database. /57/ Specifically, PHMSA evaluated reported incidents from 2004-2015 involving liquid petroleum transported by rail. Most of the incidents are relatively minor non-accident releases on which an OSRP would have no effect. Railroads would only be required to develop comprehensive OSRPs along routes where the potential for a worst-case discharge of oil is possible. These are routes on which HHFTs operate, because an accidental release involving a derailment, train collision, or other accident involving trains hauling large quantities of petroleum oil are the only incidents that have the potential to result in a large quantity release of material. Above we presented the significant crude oil derailments graphed against carloads of product shipped by rail for 2000-2015.
FOOTNOTE 57 https://hazmatonline.phmsa.dot.gov/IncidentReportsSearch/IncrSearch.aspx. END FOOTNOTE
A comprehensive OSRP would be required to cover those routes/railroads that haul petroleum oil HHFTs, so the benefits analysis is limited to those derailments involving petroleum oil HHFTs. The Agency has identified 12 such derailments between 2012 and 2015. Specifically, there were 3 events in 2013; 4 in 2014; and 5 in 2015, for a total of 12 incidents.
2015 volumes are still roughly twice the volumes seen in 2012, and EIA predicts
One simple way to predict the number of future events based on the HHFT period is as follows: The period of high volume crude shipments starts in 2012 through 2015, providing a 4-year period. We consider a 10-year analysis period going forward, so the analysis period is 2.5 times longer than the observed period. There were 12 incidents in the observed period, so the predicted number of events over the analysis period would be 12 x 2.5 = 30 incidents. We note that 2012 volumes were much lower than subsequent years, so treating it as a full year results in a conservative estimate of the number of events. Evidence for this can be seen in the data, as all 12 events occurred in 2013-2015, with 4 occurring in 2014 and 5 occurring in 2015. 2013 had 3 HHFT derailments, meeting the 4 year average. 2012 is the only year in the analysis period with fewer than 3 derailments.
To monetize the damages associated with these incidents, PHMSA assumes an equal chance of an incident occurring in any year of the 10 year analysis period. Given 30 events, this assumption means the expected number of events in any given year is 3. Based on the 12 events for which data reporting is reasonably complete, PHMSA estimated that, on average, 140,173 gallons of product are released per crude oil HHFT derailment. In final rule HM-251, the Agency used $200 per gallon to monetize the damages of an incident that results in a spill. /58/ That figure is based on the cost per gallon from recent pipeline events and a literature review and data analysis conducted for both crude and ethanol. Since this rule focuses on petroleum oil only (and not ethanol), a slightly different value is applied. We use a value of $211 to estimate baseline damages associated with train derailment releases. (See the draft RIA for this proposed rulemaking, in section 3.1.4, for further discussion of how this cost per gallon figure was derived.)
FOOTNOTE 58 For detail on how this value was derived from PHMSA pipeline data, the reader is referred to pages 85-90 of the HM-251 RIA located in Docket No. PHMSA-2012-0082 (HM-251). END FOOTNOTE
Table 15 below presents the estimated societal damages associated with HHFT incidents involving crude oil over the 10-year analysis period. The monetary value is obtained by multiplying the expected number of events in a year (3) by the cost per gallon released ($211) and the average release quantity (140,173). In addition, we adjust this baseline for the implementation of final rule HM-251, which codified new tank car standards for HHFTs and is expected to reduce the societal damages imposed by these incidents by 40 percent once fully implemented. Since this proposed rule will be finalized before implementation of final rule HM-251 is complete (i.e. full phase in of retrofitted tank cars and Electronically Controlled Pneumatic Braking), we apply the final rule HM-251 effectiveness rates for the years 2017-2026 to adjust for the impact of that rule on baseline damages. Societal damage values discounted at 3 and 7 percent are also presented.
Table 15--Summary of Estimated Societal Damages From Crude Oil HHFT Incidents Year Events per Monetized HHFT Adjusted year value *1 effectiveness monetized (percent) value 1 3 $88,729,245 22 $69,030,780 2 3 88,729,245 28 63,774,491 3 3 88,729,245 34 58,717,940 4 3 88,729,245 36 56,486,231 5 3 88,729,245 38 54,802,306 6 3 88,729,245 38 55,154,097 7 3 88,729,245 38 55,196,048 8 3 88,729,245 38 55,288,413 9 3 88,729,245 38 55,211,463 10 3 88,729,245 38 55,211,463 578,873,232 7% discount 440,537,002 3% discount 511,335,291 *1 Calculated by multiplying 140,173 (estimate of gallons released per event) times $211 (estimate of societal cost per gallon released) times 3 (estimate of events per year).
Although the Agency cannot estimate the degree to which comprehensive OSRP requirements would reduce the consequences of these events, it is clear by comparing the monetized damages with the total costs of the proposed rule that even a minor reduction in damages would result in a rule with positive net benefits. For example, estimated costs as presented in Table 3 above are approximately 4.9 percent of total societal damages, indicating that if this proposed rule reduced the consequences of these events by 5 percent, the rule would have positive net benefits.
Comprehensive plans require training and exercises, staging of equipment, analysis of routes and access points along routes as part of the development of response zone appendices, and pre-establishing of a chain of command and communication protocols, which would likely result in much faster and more effective response to derailments involving large quantities of petroleum oil. As a result, we expect the spilled product would be contained and recaptured more effectively, a smaller area would be contaminated, fewer environmental consequences would result, and less property would be damaged. For example, a better executed response to an incident that contaminates a river might ensure quicker deployment of downriver booms, thereby reducing the amount of shoreline oiling, damage to riparian environments, and impairment of downstream sources of drinking water. The Agency believes that training, better coordinated resource deployment, more clearly delineated communication protocols and command structure, and pre-event contracting of response resources will substantially reduce the impacts of these incidents, and as a result the rule is likely to be cost-justified.
B. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. This NPRM does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $155 million or more, adjusted for inflation, to either State, local, or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule. As such, PHMSA has concluded that the NPRM does not require an Unfunded Mandates Act analysis.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 ("Federalism") and the President's memorandum on "Preemption" published in the Federal Register on May 22, 2009 (74 FR 24693). Executive Order 13132 requires PHMSA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." "Policies that have federalism implications" are defined in the executive order to include regulations that have "substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government." Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by state and local governments or the agency consults with state and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts state law, the agency, where practicable, seeks to consult with state and local officials in the process of developing the regulation.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. PHMSA has determined that the proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule proposes to update the existing 49 CFR part 130 by lowering the applicability threshold and providing more detailed guidelines for comprehensive oil spill response planning. It further proposes to require railroads to share additional information with state and tribal emergency response organizations, and proposes to incorporate by reference an initial boiling point test for flammable liquids as an acceptable testing alternative. The proposed rule does not impose any new requirements with effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among government entities. In addition, PHMSA has determined that this proposed rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Hazardous Materials Transportation Act (HMTA) provides that a state law or Indian tribe requirement is preempted where compliance with both the state law or Indian tribe requirement and the federal requirement is not possible, the state law or Indian tribe requirement creates an obstacle to accomplishing or executing the federal requirement, or where a federal requirement has covered the subject and the state law or Indian requirement is not substantively the same. Covered subjects under the HMTA include: (1) The designation, description, and classification of hazardous material; (2) the packing, repacking, handling, labeling, marking, and placarding of hazardous material; (3) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents; (4) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving state or local emergency responders in the initial response to the incident; and (5) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. Under the Federal Railroad Safety Act, "[l]aws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable." With narrow exceptions for essentially local safety or security hazards, states may not "adopt or continue in force a law, regulation, or order related to railroad safety" once the "Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement." 33 U.S.C. 20106(a)(2). This standard applies to federal regulations governing the transportation of hazardous materials by railroad, even where PHMSA or another agency promulgates those regulations.
Comments to the ANPRM from the concerned public and departments within city and State governments highlight state legislation related to oil spill response plans and request that PHMSA discuss the preemptive effects of the changes to part 130 in this proposed rule. Part 130 is issued under authority of 33 U.S.C. 1321(o)(1)(C) and 1321(j)(5).
Regarding the proposed changes to 49 CFR part 130, federal regulation under 33 U.S.C. 1321 accommodates regulation by states and political subdivisions concerning oil spill response plans. See 33 U.S.C. 1321(o)(2). However, the preemption language of 33 U.S.C. 1321 preserves only the ability for states to impose oil spill planning requirements. Elements of state oil spill response plan legislation may be preempted under the preemption standard established by the FRSA and the HMTA. Accordingly, the preemption provision of the FRSA and the HMTA may apply to any state-imposed requirements on railroad safety or hazardous materials containment. Nonetheless, PHMSA has determined that this proposed rule will not impose substantial direct compliance costs on State and local governments.
PHMSA solicits comment on this Federalism discussion.
D. Executive Order 13175
Executive Order 13175 ("Consultation and Coordination with Indian Tribal Governments") requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that have tribal implications. Thus, in complying with this Executive Order, agencies must determine whether a proposed rulemaking has tribal implications, which include any rulemaking that imposes "substantial direct effects" on one or more Indian communities, on the relationship between the Federal Government and Indian tribes, or on the distribution of power between the Federal Government and Indian tribes. Further, to the extent practicable and permitted by law, agencies cannot promulgate two types of rules unless they meet certain conditions. The two types of rules are: (1) Rules that have tribal implications that impose substantial direct compliance costs on Indian tribal governments and that are not required by statute; and (2) rules that have tribal implications and that preempt tribal law.
PHMSA is committed to tribal outreach and engaging tribal governments in dialogue. Among other outreach efforts, PHMSA representatives attended the National Joint Tribal Emergency Management Conference on August 11-14, 2015 and the Northwest Tribal Emergency Management Conference in May 4-6, 2016. In the spirit of Executive Order 13175 and consistent with DOT Order 5301.1, PHMSA will be continuing outreach to tribal officials independent of our assessment of the direct tribal implications.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures
Under the Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.), PHMSA must consider whether a rulemaking would have a "significant economic impact on a substantial number of small entities," which include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000.
To ensure potential impacts of rules on small entities are properly considered, PHMSA in coordination with the FRA, developed this NPRM in accordance with Executive Order 13272 ("Proper Consideration of Small Entities in Agency Rulemaking") and DOT's procedures and policies to promote compliance with the RFA.
The RFA and Executive Order 13272 (67 FR 53461; August 16, 2002) require agency review of proposed and final rules to assess their impacts on small entities. An agency must prepare an initial regulatory flexibility analysis (IRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities.
PHMSA is publishing this IRFA to aid the public in commenting on the potential small business impacts of the requirements in this NPRM. PHMSA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of the proposals in this NPRM. PHMSA will consider all information and comments received in the public comment process when making a determination regarding the economic impact on small entities in the final rule.
Under the RFA at 5 U.S.C. 603(b), each initial regulatory flexibility analysis is required to address the following topics:
(1) The reasons why the agency is considering the action.
(2) The objectives and legal basis for the proposed rule.
(3) The kind and number of small entities to which the proposed rule will apply.
(4) The projected reporting, recordkeeping and other compliance requirements of the proposed rule.
(5) All Federal rules that may duplicate, overlap, or conflict with the proposed rule.
The RFA at 5 U.S.C. 603(c) requires that each initial regulatory flexibility analysis contains a description of any significant alternatives to the proposal that accomplish the statutory objectives and minimize the significant economic impact of the proposal on small entities. In this instance, none of the alternatives accomplish the statutory objectives and minimize the significant economic impact of the proposal on small entities.
(1) Reasons Why the Agency Is Considering the Action
PHMSA, in coordination with the FRA, is issuing this NPRM in order to improve response readiness and mitigate effects of rail incidents involving petroleum oil and certain HHFTs. This is necessary due to the expansion in
FOOTNOTE 59 This rulemaking also proposes incorporation and the voluntary use of the initial boiling point (IBP) test (ASTM D7900) to determine classification and packing group for Class 3 Flammable liquids. We note that the incorporation of API RP 3000 and consequently ASTM D7900 will not replace the currently authorized testing methods, rather serve as a testing alternative if one chooses to use that method. PHMSA believes this provides flexibility and promotes enhanced safety in transport through accurate PG assignment. This provision would not pose any impacts on small entities. END FOOTNOTE
FOOTNOTE 60 We note that the incorporation of API RP 3000, which contains the ASTM D7900 test will not replace the currently authorized initial boiling point testing methods, but rather serve as a testing alternative if one chooses to use that method. PHMSA believes this provides flexibility and promotes enhanced safety in transport through accurate packing group assignment. This requirement will impose no new costs. END FOOTNOTE
(A) Oil Spill Response Plans
PHMSA is promulgating this NPRM in response to recent train accidents involving the derailment of HHFTs. Shipments of large volumes of liquid petroleum oil pose a significant risk to life, property, and the environment. PHMSA has identified several recent derailments to illustrate the circumstances and consequences of derailments involving petroleum oil transported in higher-risk train configurations:
For example, on December 30, 2013, a train carrying crude oil derailed and ignited near
Of note here is the
FOOTNOTE 61 http://www.ntsb.gov/safety/safety-recs/recletters/R-14-004-006.pdf. END FOOTNOTE
On June 17, 1996, RSPA published a final rule issuing requirements that meet the intent of the Clean Water Act. This rule adopted requirements for packaging, communication, spill response planning, and response plan implementation intended to prevent and contain spills of oil during transportation. Under these current requirements, railroads are required to complete a basic OSRP for oil shipments in a package with a capacity of 3,500 gallons or more, and a comprehensive OSRP is required for oil shipments in a package containing more than 42,000 gallons (1,000 barrels).
Currently, most, if not all, of the rail community transporting oil, including crude oil transported as a hazardous material, is subject to the basic OSRP requirement of 49 CFR 130.31(a) since most, if not all, rail tank cars being used to transport crude oil have a capacity greater than 3,500 gallons. However, a comprehensive OSRP for shipment of oil is only required when the quantity of oil is greater than 42,000 gallons per tank car. Accordingly, the number of railroads required to have a comprehensive OSRP is much lower, or possibly non-existent, because a very limited number of rail tank cars in use would be able to transport a volume of 42,000 gallons in a car. /62/
FOOTNOTE 62 The 2014 AAR's Universal Machine Language Equipment Register numbers showed five tank cars listed with a capacity equal to or greater than 42,000 gallons, and none of these cars were being used to transport oil or petroleum products. END FOOTNOTE
The proposed rule expands the applicability of comprehensive OSRPs based on thresholds of crude oil that apply to an entire train consist. Specifically, the proposed rule would expand the applicability for OSRPs so that no person may transport a HHFT quantity of liquid petroleum oil unless that person has implemented a comprehensive OSRP.
Each railroad subject to the proposed rule must prepare and submit a comprehensive OSRP that includes a plan for responding, to the maximum extent practicable, to a worst-case discharge and to a substantial threat of such a discharge of oil. The OSRP must also be submitted to the FRA, where it will be reviewed and approved by FRA personnel.
(B) Information Sharing
On May 7, 2014, DOT issued Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067, /63/ which required each railroad transporting 1,000,000 gallons or more of Bakken crude oil in a single train in commerce within the U.S. to provide certain information in writing to the SERC for each state in which it operates such a train. In the HM-251 (RIN 2137-AE91) NPRM published last year (79 FR 45015; Aug. 1, 2014), PHMSA proposed to codify and clarify the requirements of the Order in the HMR and requested public comment on the various facets of that proposal. Unlike many other requirements in the August 1, 2014 NPRM, the notification requirements were specific to a single train that contains one million gallons or more of UN 1267, Petroleum crude oil, Class 3, sourced from the Bakken shale. In the HHFT Final Rule, PHMSA did not adopt the separate notification requirements proposed in the NPRM and instead relied on the expansion of the existing route analysis and consultation requirements of SEC 172.820 to include HHFTs to satisfy information sharing needs.
FOOTNOTE 63 http://www.dot.gov/briefing-room/emergency-order. END FOOTNOTE
Based on all the intense interests and issues revolving around information sharing, we are proposing in this HM-251B NPRM to add SEC 174.312 to add a new information sharing provisions to the additional safety and security planning requirements for transportation by rail. This proposed addition will create a tiered approach to information sharing, whereas fusion centers will continue to act as the focal point for risk analysis information deemed SSI and SERCs and TERCs will actively be provided with non-sensitive security information that can aid in emergency preparedness and community awareness. The proposed requirements provide emergency responders with an integrated approach to receiving information about HHFTs.
(2) The Objectives and Legal Basis for the Proposed Rule
PHMSA is addressing below the two requirement areas in this proposed rule, Oil Spill Response Plans and Information Sharing.
(A) Oil Spill Response Plans
PHMSA, in coordination with FRA, is issuing this NPRM in order to improve response readiness and mitigate effects of rail incidents involving petroleum crude oil transported in HHFTs. The proposed rule is necessary due to the expansion in U.S. energy production, which has led to significant challenges for the country's transportation system. This rule proposes to modernize the OSRP requirements in 49 CFR part 130. This NPRM adjusts the applicability for comprehensive oil spill response plans and clarifies the comprehensive plan requirements. Additionally, this rulemaking proposes to restructure and clarify the requirements of the comprehensive oil spill response plan. The proposed changes respond to commenter requests for requirements for more detailed guidance and provide a better parallel to other federal oil spill response plan regulations promulgated under the OPA 90 authority. A full summary of the changes to the plan requirements are described in the NPRM. Each comprehensive plan must include: /64/
FOOTNOTE 64 The following text is provided as an overview of the rule and does not replace regulatory text included in the NPRM. END FOOTNOTE
I. Core Plan: A core plan includes an information summary, as proposed in 49 CFR 130.104(a)(2), and any components which do not change between response zones. Each plan must:
* Describe the railroad's response management system, including the functional areas of finance, logistics, operations, planning, and command.
* Demonstrate that the railroad's response management system uses common terminology (e.g., the National Incident Management System) and has a manageable span of control, a clearly defined chain of command, and sufficiently trained personnel to fill each position.
* Include an information summary as required by SEC 130.104.
* Certify that the railroad reviewed the National Contingency Plan (NCP) and each applicable Area Contingency Plan (ACP) and that its response plan is consistent with the NCP and each applicable ACP and follows Immediate Notification procedures, as required by SEC 130.103.
* Include notification procedures and a list of contacts as required in SEC 130.105.
* Include spill detection and mitigation procedures as required in SEC 130.106.
* Include response activities and resources as required in SEC 130.106.
* Certify that applicable employees were trained per SEC 130.107.
* Describe procedures to ensure equipment testing and a description of the drill program per SEC 130.108.
* Describe plan review and update procedures per SEC 130.109.
* Submit the plan as required by SEC 130.111.
II. Response Zone Appendix: For reach response zone, a railroad must include a response zone appendix to provide the information summary, as proposed in 49 CFR 130.107(b), and any additional components of the plan specific to the response zones. Each response zone appendix must identify:
* A description of the response zone, including county(s) and state(s);
* A list of route sections contained in the response zone, identified by railroad milepost or other designation determined by the railroad;
* Identification of any environmentally sensitive areas per route section; and
* Identification of the location where the response organization will deploy and the location and description of equipment required by SEC 130.106(c)(6).
In addition, the proposed rule would require plan holders to identify an OSRO, provided through a contract or other approved means, to respond to a worst-case discharge to the maximum extent practicable within 12 hours.
(B) Information Sharing
In HM-251B NPRM, we are proposing to add to SEC 174.312 to add new information sharing provisions to the additional safety and security planning requirements for transportation by rail. The proposed requirements provide emergency responders with an integrated approach to receiving information about HHFTs. As proposed, SEC 174.312 will require a rail carrier of an HHFT to provide a monthly notification to the SERC, TERC, or other appropriate state delegated entities in which it operates. As proposed the notification must meet the following requirements:
* A reasonable estimate of the number of HHFT that the railroad expects to operate each week, through each county within the State or through each tribal jurisdiction;
* The routes over which the HHFTs will operate;
* A description of the hazardous material being transported and all applicable emergency response information required by subparts C and G of part 172 of this subchapter;
* An HHFT point of contact: at least one point of contact at the railroad (including name, title, phone number and address) related to the railroad's transportation of affected trains;
* If a route is additionally subject to the comprehensive spill plan requirements, the notification must include a description of the response zones (including counties and states) and contact information for the qualified individual and alternate, as specified under SEC 130.104(a);
* On a monthly basis railroads must update the notifications. If there are no changes, the railroad may provide a certification of no change.
* Notifications and updates may be transmitted electronically or by hard copy.
* Each point of contact must be clearly identified by name or title and role (e.g. qualified individual, HHFT point of contact) in association with the telephone number. One point of contact may fulfill multiple roles.
* Copies of HHFT notifications made must be made available to the Department of Transportation upon request.
The proposed changes build upon the requirements adopted in HHFT Final Rule to continue to the comprehensive approach to ensuring the safe transportation of energy products.
The Secretary has the authority to prescribe regulations for the safe transportation, including the security, of hazardous materials in intrastate, interstate, and foreign commerce (49 U.S.C. 5103(b)) and has delegated this authority to PHMSA via 49 CFR 1.97(b).
(3) A Description of and, Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply
The universe of the entities considered in an IRFA generally includes only those small entities that can reasonably expect to be directly regulated by the regulatory action. Small railroads are the types of small entities potentially affected by this proposed rule.
A "small entity" is defined in 5 U.S.C. 601(3) as having the same meaning as "small business concern" under section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Title 49 U.S.C. 601(4) likewise includes within the definition of small entities non-profit enterprises that are independently owned and operated, and are not dominant in their field of operation.
The U.S. Small Business Administration (SBA) stipulates in its size standards that the largest a "for-profit" railroad business firm may be, and still be classified as a small entity, is 1,500 employees for "line haul operating railroads" and 500 employees for "switching and terminal establishments." Additionally, 5 U.S.C. 601(5) defines as small entities governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.
Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final Statement of Agency Policy that formally establishes small entities or small businesses as being railroads, contractors, and hazardous materials offerors that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, /65/ and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 2003) (codified as appendix C to 49 CFR part 209). The $20 million limit is based on the Surface Transportation Board's revenue threshold for a Class III railroad. Railroad revenue is adjusted for inflation by applying a revenue deflator formula in accordance with 49 CFR 1201.1-1. PHMSA is using this definition for the rulemaking.
FOOTNOTE 65 For 2012 the Surface Transportation Board (STB) adjusted this amount to $36.2 million. END FOOTNOTE
Railroads
Not all small railroads would be required to comply with the provisions of this rule. Most of the approximately 738 small railroads that operate in the United States do not transport hazardous materials. Based on the requirements of this proposed rule, the entities potentially affected by requirement are as described below:
(A) Oil Spill Response Plans
For determining the entities that would be affected by the requirements proposed in this rulemaking, PHMSA used the definition of "HHFT" established in the HHFT Final Rule. /66/ Based on an evaluation of the 2013 Waybill Sample data and consultation with FRA, PHMSA estimated that 55 small railroads could potentially be affected by this proposed rule as they transport crude oil in HHFTs. Therefore, this proposed rule would impact 7.5 percent of the universe of 738 small railroads.
FOOTNOTE 66 80 FR 26643, pp 26643-26750. May 8, 2015. END FOOTNOTE
(B) Information Sharing
The applicability of this requirement is derived from the information published in the HHFT Final Rule. Specifically, the definition of a High-Hazard Flammable Train and the information sharing portion of the routing requirements are related to this NPRM. The HHFT Final Rule defined "High-Hazard Flammable Train" as a continuous block of 20 or more tank cars in a single train or 35 or more cars dispersed through a train loaded with a flammable liquid.
This definition also served as the applicable threshold of many of the requirements in the HHFT rulemaking, including routing requirements. Section 172.820 prescribes additional safety and security planning requirements for transportation by rail. In the HHFT Final Rule, the applicability for routing requirements in SEC 172.820 were revised to require that any rail carrier transporting an HHFT comply with the additional safety and security planning requirements for transportation by rail. The routing requirements adopted in the HHFT Final Rule are related to this NPRM, as the proposed requirements will create a tiered approach to information sharing; whereas fusion centers will continue to act as the focal point for risk analysis information deemed SSI in SEC 172.820, SERCs and TERCs will actively be provided with non-sensitive security information in a monthly HHFT notification that can aid in emergency preparedness and community awareness in SEC 174.312.
The universe of affected entities for the information sharing requirements is different than the number of entities affected under the comprehensive response plan requirement. The applicability of this requirement is derived from the information published in the HHFT Final Rule. Specifically, the definition of an HHFT and the information sharing portion of the routing requirements are related to this NPRM. The number of small entities impacted under this requirement is different from the number of entities impacted under the comprehensive OSRP requirement due to the different applicability of these two requirements. In particular, the comprehensive OSRP requirement applies to HHFTs transporting crude oil (and potentially other petroleum oils), while the information sharing requirement applies to HHFTs transporting both crude oil and ethanol (and potentially other Class 3 flammable liquids). As described under the impact on the small entities section with the routing requirements in the HHFT Final Rule, there are 160 affected small entities under the routing requirements. Thus, the proposed requirement in this NPRM could potentially affect 160 small railroads transporting flammable liquids in HHFTs. Therefore, this proposed rule would impact 22 percent of the universe of 738 small railroads.
(4) A Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Proposed Rule
For a thorough presentation of cost estimates, please refer to the draft RIA, which has been placed in the docket for this rulemaking. PHMSA is addressing below the two requirements areas in this proposed rule, Oil Spill Response Plans and Information Sharing.
(A) Oil Spill Response Plans
This rule proposes to modernize the requirements by changing the applicability for comprehensive oil spill response plans and clarifying the comprehensive plan requirements. The proposed rule expands the applicability of comprehensive OSRPs to railroads transporting a single train of 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist. These railroads, that are currently required to develop a basic plan, would now be required to develop a comprehensive plan.
PHMSA describes below the impact on the small railroads that would be required under the proposed alternative which any railroad carrying 20 or more tank cars of liquid petroleum oil in a continuous block or 35 such cars on a single train to submit a comprehensive OSRP. The total cost estimate with the proposed requirements for small railroads in the proposed alternative is conservative, when compared to the cost estimates of the other several alternatives evaluated by PHMSA. PHMSA evaluated several alternatives related to the threshold values for the universe of affected entities that would be required to submit a comprehensive response plan. /67/ For additional information about the development of these cost estimates, the specific differences between a basic and comprehensive OSRP including the estimated cost per railroad by railroad class please refer to the draft RIA, which has been placed in the docket for this rulemaking. For determining the entities that would be affected by the proposed threshold, PHMSA used the definition HHFT from the HHFT Final Rule. /68/ PHMSA narrowed the affected entities to only include railroads that transported crude oil and, in consultation with FRA, revised the estimated number of Class III carriers that would be subject to the rulemaking. Based on this assessment, PHMSA estimates there are 73 railroads (7 Class I, 11 Class II, and 55 Class III) that would be subject to this proposed rulemaking. PHMSA specifically requests comment on the approach and estimated values used in this analysis. Each comprehensive plan must include:
FOOTNOTE 67 Under each of these alternatives, the number of Class I and Class II railroads affected by the proposed thresholds does not change. However, the number of Class III railroads that would be subject to the proposed rule ranges from 55 to 20 railroads. Based on evaluation of the 2013 Waybill Sample data and in consultation with the FRA, PHMSA determined that 55 small railroads is the largest number of small railroads that is subject to the proposed option requirements. Please, refer to the draft RIA for additional information regarding the number of impacted entities under the other several alternatives. END FOOTNOTE
FOOTNOTE 68 80 FR 26643, pp 26643-26750. May 8, 2015. END FOOTNOTE
I. Core Plan: A core plan includes an information summary, as proposed in 49 CFR 130.104(a)(1), and any components which do not change between response zones.
II. Response Zone Appendix: For reach response zone, a railroad must include a response zone appendix to provide the information summary, as proposed in SEC 130.107(a)(2), and any additional components of the plan specific to the response zones.
In addition, the proposed rule would require plan holders to identify an OSRO, provided through a contract or other approved means, to respond to a worst-case discharge to the maximum extent practicable within 12 hours.
PHMSA has identified several categories of costs related to the development and implementation of a comprehensive response plan. Those costs include the following: plan development, submission, and maintenance; contract fees for designating an OSRO; training and drills; and plan review and approval. For additional information about the development of these cost estimates, please refer to the draft RIA, which has been placed in the docket for this rulemaking.
As noted in section 3 of this IRFA, approximately 55 small railroads carry crude oil in train consists large enough that they would potentially be affected by this rule.
PHMSA considers the average annual cost per railroad relevant for the purposes of this analysis instead of presenting first year and subsequent year cost per railroad due to the nature of frequency of requirements with the development of a comprehensive plan, which varies between annual and every five years. The total undiscounted cost with the plan for the small railroads is $14,595,175 over the ten year period of the analysis. PHMSA estimates the total cost to each small railroad to be $37,613 in the first year and an annual average cost of $25,306 in subsequent years taking into account the costs growing with increases in real wages. /69/ Small railroads have annual operating revenues that range from $3 million to $20 million. Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of average annual revenue per small railroad is $47,000. Thus, the costs associated with this requirement amount to less than one percent of the railroad's annual operating revenue. PHMSA realizes that some small railroads will have lower annual revenue than $4.7 million. However, PHMSA is confident that this estimate of total cost per small railroad provides a good representation of the cost applicable to small railroads, in general.
FOOTNOTE 69 Costs per railroad are derived in the draft RIA, with costs for all Class III railroads divided by the 55 impacted railroads. The Year 1 total costs are calculated at $2,068,728. The estimated Year 1 cost per railroad is then calculated at $37,613 = $2,068,728/55 small railroads. The average annual cost for the subsequent years is calculated at $1,391,827.4 = $12,526,448/9 years. The estimated average annual cost per small railroad for the subsequent years is then calculated at $25,306 = $1,391,827.4/55 small railroads. END FOOTNOTE
In conclusion, PHMSA believes that although some small railroads will be directly impacted, the impact will amount to less than one percent of an average small railroad's annual operating revenue.
(B) Information Sharing
Based on all industry interests and issues revolving around information sharing, in this NPRM we are proposing to add new information sharing provisions to the additional safety and security planning requirements for transportation by rail in a new SEC 174.312. As discussed previously, SEC 172.820(g) provides the requirements for rail carrier point of contact on routing issues for SSI. In this NPRM, we are proposing to add SEC 174.312 to add additional information sharing requirements. As proposed, a rail carrier of a HHFT as defined in SEC 171.8 of this subchapter must provide the following notification to SERC, TERC, or other appropriate state delegated entities in which it operates. As proposed, information required to be shared must consist of the following:
* A reasonable estimate of the number of affected HHFTs that are expected to travel, per week, through each county within the state.
* The routes over which the affected trains will be transported.
* A description of the materials shipped and applicable emergency response information required by subparts C and G of part 172 of this subchapter.
* At least one point of contact at the railroad (including name, title, phone number and address) responsible for serving as the point of contact for the SERC, TERC, and relevant emergency responders related to the railroad's transportation of affected trains.
* The information summary elements (e.g. response zone description and contact information for qualified individuals) for the comprehensive oil spill response plan required by SEC 130.104(a), when applicable.
* Railroads must update notifications made under section 174.312 on a monthly basis.
* Copies of railroad notifications made under section 174.312 of this section must be made available to DOT upon request.
Approximately 160 small railroads carry crude oil and ethanol in train consists large enough that they would potentially be affected by this rule.
PHMSA estimates the total cost of information sharing to each small railroad to be $7,589 in the first year and $2,319 for subsequent years, with costs growing with increases in real wages. /70/ Small railroads' annual operating revenues range from $3 million to $20 million. Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of average annual revenue per small railroad is $47,000. Thus, the costs associated with this rule amount to less than one percent of the railroad's annual operating revenue. PHMSA realizes that some small railroads will have lower annual revenue than $4.7 million. However, PHMSA is confident that this estimate of total cost per small railroad provides a good representation of the cost applicable to small railroads, in general.
FOOTNOTE 70 Please refer to the draft RIA for full description on how these costs per railroad are derived. END FOOTNOTE
Total Burden on Small Entities
Table 16 provides the total burden on small railroads with the comprehensive OSRP and information sharing requirements:
Table 16--Summary Undiscounted Annual Burden on Class III Railroads Requirement area Number of Year 1 cost Average impacted per small annual small railroad-- cost in railroads undiscounted subsequent years per small railroad-- undiscounted Oil Spill Response Plans 55 $37,613 $25,306 Information Sharing 160 7,589 2,319 Total burden per small 45,202 27,625 railroad ( ]
In conclusion, PHMSA believes that although some small railroads will be directly impacted, the impact will amount to less than one percent of an average small railroad's annual operating revenue.
This proposed rule will not have a noticeable impact on the competitive position of the affected small railroads or on the small entity segment of the railroad industry as a whole. The small entity segment of the railroad industry faces little in the way of intramodal competition. Small railroads generally serve as "feeders" to the larger railroads, collecting carloads in smaller numbers and at lower densities than would be economical for the larger railroads. They transport those cars over relatively short distances and then turn them over to the larger systems, which transport them relatively long distances to their ultimate destination, or for handoff back to a smaller railroad for final delivery. Although their relative interests do not always coincide, the relationship between the large and small entity segments of the railroad industry is more supportive and co-dependent than competitive.
It is also rare for small railroads to compete with each other. As mentioned above, small railroads generally serve smaller, lower density markets and customers. They tend to operate in markets where there is not enough traffic to attract or sustain rail competition, large or small. Given the significant capital investment required (to acquire right-of-way, build track, purchase fleet, etc.), new entry in the railroad industry is not a common occurrence. Thus, even to the extent the proposed rule may have an economic impact, it should have no impact on the intramodal competitive position of small railroads.
In the NPRM, PHMSA seeks information and comments from the industry that might assist in quantifying the number of small offerors who may be economically impacted by the requirements set forth in the proposed rule.
(5) An Identification, to the Extent Practicable, of All Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
PHMSA is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. PHMSA will collaborate and coordinate with FRA to ensure that our actions are aligned to the greatest extent practicable. This proposed rule would support most other safety regulations for railroad operations. The proposals in this NPRM work in conjunction with the requirements adopted in the HHFT Final Rule to continue the comprehensive approach to ensuring the safe transportation of energy products, mitigate the consequences of such accidents should they occur.
PHMSA is publishing this IRFA to aid the public in commenting on the potential small business impacts of the proposals in this NPRM. PHMSA invites all interested parties to submit data and information regarding the potential economic impact that would result from adoption of the proposals in this NPRM. PHMSA will consider all comments received in the public comment process when making a determination in the final RFA.
F. Paperwork Reduction Act
PHMSA will request a revision to the information collection from the Office of Management and Budget (OMB) under OMB Control No. 2137-0682, entitled "Flammable Hazardous Materials by Rail Transportation." This NPRM may result in an increase in annual burden and costs under OMB Control No. 2137-0682 due to proposed requirements pertaining to the creation of oil spill response plans and notification requirements for the movement of flammable liquids by rail.
Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Section 1320.8(d) of Title 5 of the CFR requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information and recordkeeping requests.
This document identifies a revised information collection request that PHMSA will submit to OMB for approval based on the requirements in this proposed rule. PHMSA has developed burden estimates to reflect changes in this proposed rule and specifically requests comments on the information collection and recordkeeping burdens associated with this NPRM.
Oil Spill Response Plans
PHMSA estimates that there will be approximately 73 respondents, based on a review of the number of railroad operators in existence that transport trains with 20 or more tank cars loaded with liquid petroleum oil in a continuous block or 35 or more tank cars loaded with liquid petroleum oil throughout the train. PHMSA estimates that it will take a rail operator 80 hours to produce a comprehensive oil spill response plan as proposed in this NPRM. In addition, the oil spill response plan will have an addendum for each response zone that the applicable trains pass through. It is estimated this addendum will take 15 hours per response zone. In addition, the oil comprehensive response plans will require annual maintenance as well. This annual maintenance is expected to take 20 hours for Class I railroads, 11 hours for Class II railroads, and 9.5 hours for Class III railroads. The hourly labor rate used to estimate the cost of initial plan development and its maintenance is $73.89. This labor rate is based on the median wage estimate from the Bureau of Labor Statistics (BLS) Occupational Employment and Wages, May 2014 for the wage series "11-1021 General and Operational Managers."
Initial Oil Spill Response Plan--Developed and Then Reviewed by the Railroad in Full Every 5 Years
There are 7 Class I railroads in existence that will be required to create a comprehensive oil spill response plan at 80 hours per plan resulting in 560 burden hours. Each Class I railroad is expected to have 8 response zones at 15 hours per response zone resulting in 840 burden hours. Combined this will result in a total of 1,400 burden hours Class I railroad oil spill response plans. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in a burden cost of $103,446.00.
There are 11 Class II railroads in existence that will be required to create a comprehensive oil spill response plan at 80 hours per response plan resulting in 880 burden hours. Each Class II railroad is expected to have 2 response zones at 15 hours per zone resulting in 330 burden hours. Combined this will result in a total of 1,210 burden Class II railroad oil spill response plans. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in a burden cost of $89,406.90.
There are 55 Class III railroads in existence that will be required to create a comprehensive oil spill response plan at 80 hours per response plan resulting in 4,400 burden hours. Each class III railroad is expected to pass through 1 response zones at 15 hours per zone resulting in 825 burden hours. Combined this will result in a total of 5,225 burden hours for Class III railroads oil spill response plans. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in a burden cost of $386,075.25.
The total annual burden hours for all oil spill response plans is 8,795 burden hours. The total burden cost is $649,862.55. The review of a comprehensive plan is required every 5 years resulting in an annual burden of 1,567 hours per year and a total annual cost of $115,785.63.
Presented below is a summary of the numbers describe above:
Initial Oil Spill Response Plan--Developed and Then Reviewed By the Railroad in Full Every 5 Years
Class I--(7 Responses x 80 Hours per plan) + (7 responses x 8 Response Zones x 15 hours per zone) = 1,400 burden hours x $73.89 hourly rate = $103,446.00.
Class II--(11 Response x 80 Hours per plan) + (11 response x 2 Response Zones x 15 hours per zone) = 1,210 burden hours x $73.89 hourly rate = $89,406.90.
Class III--(55 Response x 80 Hours per plan) + (55 responses x 1 Response Zone x 15 hours per zone) = 5,225 burden hours x $73.89 hourly rate = $386,075.25.
Total Hours = 7,835/5 years = 1,567 Annual Burden Hours x $73.89 = $115,785.63 in Annual Cost.
Oil Spill Response Plan Maintenance--Done Annually
There are 7 Class I railroads in existence that will be required to annually maintain their oil spill response plan at 20 hours per plan resulting in 140 annual burden hours. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $10,344.60.
There are 11 Class II railroads in existence that will be required to annually maintain their oil spill response plan at 11 hours per plan resulting in 121 annual burden hours. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $8,940.69.
There are 55 Class III railroads in existence that will be required to annually maintain their oil spill response plan at 9.5 hours per plan resulting in 525.5 annual burden hours. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $38,829.20
The sum of the total annual burden hours presented above is 783.5 burden hours.
Presented below is a summary of the numbers describe above:
Class I--7 Responses x 20 Hours per response = 140 annual burden hours x $73.89 = $10,344.60 annual burden cost.
Class II--11 Response x 11 Hours per response = 121 annual burden hours x $73.89 = $8,940.69 annual burden cost.
Class III--55 response x 9.5 hours per response = 522.5 annual burden hours x $73.89 = $386,075.25 annual burden cost.
Total Hours for Plan Maintenance = 783.5 Annual Burden Hours x $73.89 per hour = $57,892.81 annual burden cost.
Notifications to Emergency Response Commissions
For the creation of the initial HHFT information sharing notification PHMSA estimates that there will be approximately 178 respondents based on a review of the number of railroad operators shipping class 3 flammable liquids. PHMSA estimates that it will take a rail operator 30 hours to create initial notification plan for the State Emergency Response Commissions (SERCs), 30 hours to create initial notification plan for the Tribal Emergency Response Commissions (TERCs), and 15 hours to create the initial plan for other state delegated agencies.
Class I Railroads
PHMSA expects 7 responses (30 hours per response) resulting in 210 burden hours for SERC plans. PHMSA expects 7 responses (30 hours per response) resulting in 210 burden hours for TEPC plans. PHMSA expects 7 responses (15 hours per response) resulting in 105 burden hours for other state delegated agency plans. This will result in an initial one year total burden of 525 hours for Class I railroads. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $38,792.25.
Class II Railroads
PHMSA expects 11 responses (30 hours per response) resulting in 330 burden hours for SERC plans. PHMSA expects 11 responses (30 hours per response) resulting in 330 burden hours for TERC plans. PHMSA expects 11 responses (15 hours per response) resulting in 115 burden hours for other state delegated agency plans. This will result in an initial one year total burden of 775 hours for Class II railroads. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $57,264.75.
Class III Railroads
PHMSA expects 160 responses (30 hours per response) resulting in 4,800 burden hours for SERC plans. PHMSA expects 160 responses (30 hours per response) resulting in 4,800 burden hours for TERC plans. PHMSA expects 160 responses (15 hours per response) resulting in 2,400 burden hours for other state delegated agency plans. This will result in an initial one year total burden of 12,000 hours for Class III railroads. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $886,680.00.
Initial plan creation (year one--one time)
Class I--7 responses x 30 hours for SERC plan = 210 burden hours
7 responses x 30 hours for TERC plan = 210 burden hours
7 responses x 15 hours for other state delegated agency plan = 105 burden hours
Class II--11 responses x 30 hours for SERC plan = 330 burden hours
11 responses x 30 hours for TERC plan = 330 burden hours
11 responses x 15 hours for other state delegated agency plan = 115 burden hours
Class III--160 responses x 30 hours for SERC plan = 4,800 burden hours
160 responses x 30 hours for TERC plan = 4,800 burden hours
160 responses x 15 hours for other state delegated agency plan = 2,400 burden hours
Total initial year burden = 13,300 burden hours/$982,737.00 burden cost.
For the maintenance of the notification plan PHMSA estimates that there will be approximately 178 respondents based on a review of the number of railroad operators shipping class 3 flammable liquids. PHMSA estimates that it will take a rail operator 12 hours to maintain notification plan for the SERCs, 12 hours to maintain notification plan for TERCs, and 6 hours to maintain the plan for other state delegated agencies.
Class I Railroads
PHMSA expects 7 responses (12 hours per response) resulting in 84 burden hours for SERC plans. PHMSA expects 7 responses (12 hours per response) resulting in 84 burden hours for TERC plans. PHMSA expects 7 responses (6 hours per response) resulting in 42 burden hours for other state delegated agency plans. This will result in an annual total burden of 210 hours for Class I railroads. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $15,516.90.
Class II Railroads
PHMSA expects 11 responses (12 hours per response) resulting in 132 burden hours for SERC plans. PHMSA expects 11 responses (12 hours per response) resulting in 132 burden hours for TERC plans. PHMSA expects 11 responses (6 hours per response) resulting in 66 burden hours for other state delegated agency plans. This will result in an initial one year total burden of 775 hours for Class II railroads. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $57,264.75.
Class III Railroads
PHMSA expects 160 responses (12 hours per response) resulting in 1,920 burden hours for SERC plans. PHMSA expects 160 responses (12 hours per response) resulting in 1,920 burden hours for TERC plans. PHMSA expects 160 responses (6 hours per response) resulting in 960 burden hours for other state delegated agency plans. This will result in an initial one year total burden of 4,800 hours for Class III railroads. This task will be performed by an operations manager at an hourly wage of $73.89 resulting in an annual burden cost of $35,240.00.
Annual Maintenance
Class I--7 responses x 12 hours for SERC plan = 84 burden hours
7 responses x 12 hours for TERC plan = 84 burden hours
7 responses x 6 hours for other state delegated agency plan = 42 burden hours
Class II--11 responses x 12 hours for SERC plan = 132 burden hours
11 responses x 12 hours for TERC plan = 132 burden hours
11 responses x 6 hours for other state delegated agency plan = 66 burden hours
Class III--160 responses x 12 hours for SERC plan = 1,920 burden hours
160 responses x 12 hours for TERC plan = 1,920 burden hours
160 responses x 6 hours for other state delegated agency plan = 960 burden hours
Total annual maintenance burden 5,785/$427,021.65
Total Additional Burden
OMB No. 2137-0682: Flammable Hazardous Materials by Rail Transportation.
Additional One Year Annual Burden:
Additional Annual Number of Respondents: 178.
Additional Annual Responses: 1,127.
Additional Annual Burden Hours: 21,435.5.
Additional Annual Burden Cost: $1,583,437.09.
Additional Subsequent Year Burden:
Additional Annual Number of Respondents: 593.
Additional Annual Responses: 593.
Additional Annual Burden Hours: 8,135.5.
Additional Annual Burden Cost: $595,700.09.
Please direct your requests for a copy of the information collection to T. Glenn Foster or Steven Andrews, U.S. Department of Transportation, Pipeline & Hazardous Materials Safety Administration (PHMSA), East Building, Office of Hazardous Materials Standards (PHH-12), 1200 New Jersey Avenue Southeast, Washington DC, 20590, Telephone (202) 366-8553.
G. Environmental Assessment
PHMSA has analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.), as amended; the Council on Environmental Quality Regulations (CEQ) regulations implementing NEPA (40 CFR parts 1500-1508); the U.S. Department of Transportation (DOT) Order 5610.C (September 18, 1979, as amended on July 13, 1982 and July 30, 1985), entitled Procedures for Considering Environmental Impacts; and other pertinent environmental regulations, Executive Orders, statutes, and laws for consideration of environmental impacts of PHMSA actions. The agency relies on all authorities noted above to ensure that it actively incorporates environmental considerations into informed decision-making on all of its actions, including rulemaking. A "Draft Environmental Assessment" (Draft EA) and a draft "Finding of No Significant Impact" (FONSI) are available in the docket PHMSA-2014-0105 (HM-251B). PHMSA has concluded that this action would have a positive effect on the human and natural environments since these response plan and information requirements would mitigate environmental consequences of spills related to rail transport of certain hazardous materials by reducing the severity of incidents as follows:
Oil Spill Response Planning . Improved Response Times. . Improved Communication/Defined Command Structure. . Better Access to Equipment. . Trained Responders. Information Sharing . Improved Communication. . Enhanced Preparedness.
A NEPA Environmental Checklist is available in the docket PHMSA-2014-0105 (HM-251B).
H. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comment from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. The electronic form of these written communications and comments can be searched by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). The DOT's complete Privacy Act Statement is available at http://www.dot.gov/privacy.
I. Statutory/Legal Authority for This Rulemaking
This NPRM is published under the authority of 33 U.S.C. 1321, The Federal Water Pollution Control Act (FWPCA), which directs the President to issue regulations requiring owners and operators of certain vessels and onshore and offshore oil facilities to develop, submit, update, and in some cases obtain approval of oil spill response plans. Executive Order 12777 delegated responsibility to the Secretary of Transportation for certain transportation-related facilities. The Secretary of Transportation delegated the authority to promulgate regulations to PHMSA and provides the FRA with approval authority for railroad ORSPs. A Memorandum of Understanding (MOU) between the DOT and EPA further establishes jurisdictional guidelines for implementing OPA (36 FR 24080). The proposed changes to part 130 in this rule address minimizing the impact of a discharge of oils into the navigable waters or adjoining shorelines.
This NPRM is also published under the authority of 49 U.S.C. 5103(b), The Federal hazardous materials transportation law, which authorizes the Secretary of Transportation to "prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce." The proposed changes in this rule to SUBSEC 171.7, 173.121, and 174.312 address safety and security vulnerabilities regarding the transportation of hazardous materials in commerce. The requirements proposed in SEC 174.312 are also mandated by Public Law 114-94, commonly known as the Fixing America's Surface Transportation Act, or the "FAST" Act.
The Federal railroad safety laws, at 49 U.S.C. 20103, provide the Secretary of Transportation with authority over all areas of railroad transportation safety and the Secretary has delegated this authority to the FRA. See 49 CFR 1.89. Pursuant to its statutory authority, FRA promulgates and enforces a comprehensive regulatory program (49 CFR parts 200-244) addressing issues such as railroad track, signal systems, railroad communications, and rolling stock. The FRA inspects railroads and shippers for compliance with both FRA and PHMSA regulations.
J. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
K. Executive Order 13211
Executive Order 13211 ("Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use"), published May 22, 2001 [66 FR 28355], requires Federal agencies to prepare a Statement of Energy Effects for any "significant energy action." Under the Executive Order, a "significant energy action" is defined as any action by an agency (normally published in the Federal Register) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation (including a notice of inquiry, advance NPRM, and NPRM) that (1)(i) is a significant regulatory action under Executive Order 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.
PHMSA has evaluated this action in accordance with Executive Order 13211. See Section VIII, Subsection G ("Environmental Assessment") for a more thorough discussion of environmental impacts and the supply, distribution, or use of energy. PHMSA has determined that this action will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, PHMSA has determined that this regulatory action is not a "significant energy action" within the meaning of Executive Order 13211.
List of Subjects
49 CFR Part 130
Oil spill prevention and response.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
49 CFR Part 174
Hazardous materials transportation, Rail carriers, Reporting and recordkeeping requirements, Security measures.
In consideration of the foregoing, we propose to amend title 49, chapter I, as follows:
PART 130--OIL SPILL RESPONSE PLANS
1. In part 130, revise the Table of Contents to read as follows:
Subpart A--Applicability and General Requirements
130.1 Purpose.
130.2 Scope.
130.3 General requirements.
130.5 Definitions.
130.11 Communication requirements.
130.21 Packaging requirements.
Subpart B--Basic Spill Response Plans
130.31 Basic spill response plans.
130.33 Basic response plan implementation.
Subpart C--Comprehensive Oil Spill Response Plans
130.101 Applicability for comprehensive plans.
130.102 General requirements for comprehensive plans.
130.103 National Contingency Plan (NCP) and Area Contingency Plan (ACP) compliance for comprehensive plans.
130.104 Information summary for comprehensive plans.
130.105 Notification procedures and contacts for comprehensive plans.
130.106 Response and mitigation activities for comprehensive plans.
130.107 Training procedures for comprehensive plans.
130.108 Equipment testing and drill procedures for comprehensive plans.
130.109 Recordkeeping and plan update procedures for comprehensive plans.
130.111 Submission and approval procedures for comprehensive plans.
130.112 Response plan implementation for comprehensive plans.
2. The authority citation for part 130 continues to read as follows:
Authority: 33 U.S.C 1321; 49 CFR 1.81 and 1.97.
3. Add a heading for subpart A immediately before SEC 130.1 to read as follows:
Subpart A--Applicability and General Requirements
SEC 130.2 [Amended]
4. In SEC 130.2 amend paragraph (d) to remove " SEC 130.31(b)" and add in its place "subpart C".
5. In SEC 130.5:
a. The introductory text is amended to redesignate the definition for "animal fat" in alphabetical order.
b. The definitions for "Adverse Weather," "Environmentally Sensitive or Significant Areas," "Maximum Potential Discharge," "Oil Spill Response Organization," "On-scene Coordinator (OSC)," "Response activities," "Response Plan," and "Response Zone" are added in alphabetical order.
c. The definitions for "Liquid," "Person," "Petroleum Oil," and "Worst-case discharge" are revised.
The additions and revisions read as follows:
SEC 130.5 Definitions.
In this subchapter:
Adverse weather means the weather conditions (e.g., ice conditions, temperature ranges, flooding, strong winds) that will be considered when identifying response systems and equipment to be deployed in accordance with a response plan.
Animal fat means a non-petroleum oil, fat, or grease derived from animals, not specifically identified elsewhere in this part.
* * * * *
Environmentally sensitive or significant areas means areas that may be identified by their legal designation or by evaluations of Area Committees (for planning) or members of the Federal On-Scene Coordinator's spill response structure (during responses). These areas may include wetlands, National and State parks, critical habitats for endangered or threatened species, wilderness and natural resource areas, marine sanctuaries and estuarine reserves, conservation areas, preserves, wildlife areas, wildlife refuges, wild and scenic rivers, recreational areas, national forests, Federal and State lands that are research national areas, heritage program areas, land trust areas, and historical and archaeological sites and parks. These areas may also include unique habitats such as aquaculture sites and agricultural surface water intakes, bird nesting areas, critical biological resource areas, designated migratory routes, and designated seasonal habitats.
* * * * *
Liquid means a material that has a vertical flow of over two inches (50 mm) within a three-minute period, or a material having one gram or more liquid separation, when determined in accordance with the procedures specified in ASTM D 4359-84, "Standard Test Method for Determining Whether a Material is a Liquid or a Solid," 1990 edition, which is incorporated by reference.
Note: This incorporation by reference has been approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy may be obtained from the American Society for Testing and Materials, 1916 Race Street, Philadelphia, PA 19103. Copies may be inspected at the Office of Hazardous Materials Safety, Standards and Rulemaking Division, DOT headquarters East Building, 1200 New Jersey Avenue SE., Washington, DC 20590, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
* * * * *
Maximum potential discharge means a planning volume for a discharge from a motor vehicle or rail car equal to the capacity of the cargo container.
* * * * *
Oil spill response organization (OSRO) means an entity that provides response resources.
On-scene Coordinator (OSC) means the Federal official pre-designated by the Administrator of the United States Environmental Protection Agency (EPA) or by the Commandant of the United States Coast Guard (USCG) to coordinate and direct federal response under subpart D of the National Contingency Plan (40 CFR part 300).
* * * * *
Person: means an individual, firm, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body, as well as a department, agency, or instrumentality of the executive, legislative or judicial branch of the Federal Government. This definition includes railroads.
Petroleum oil means any oil extracted or derived from geological hydrocarbon deposits, including oils produced by distillation or their refined products.
* * * * *
Response activities means the containment and removal of oil from navigable waters and adjoining shorelines, the temporary storage and disposal of recovered oil, or the taking of other actions as necessary to minimize or mitigate damage to the environment.
Response plan means a basic plan meeting requirements of subpart B or a comprehensive plan meeting requirements of subpart C. For comprehensive plans this definition includes both the railroad's core plan and the response zone appendices for responding, to the maximum extent practicable, to a worst case discharge of oil or the substantial threat of such a discharge.
Response zone means one or more route segments identified by the railroad utilizing the response resources which are available to respond within 12 hours after the discovery of a worst-case discharge or to mitigate the substantial threat of such a discharge for a comprehensive plan meeting requirements of subpart C.
* * * * *
Worst-case discharge means "the largest foreseeable discharge in adverse weather conditions," as defined at 33 U.S.C. 1321(a)(24). The largest foreseeable discharge includes discharges resulting from fire or explosion. The worst-case discharge from a train consist is the greater of: (1) 300,000 gallons of liquid petroleum oil; or (2) 15% of the total lading of liquid petroleum oil transported within the largest train consist reasonably expected to transport liquid petroleum oil in a given response zone.
* * * * *
6. Add a new subpart B heading immediately before SEC 130.31 to read as follows:
Subpart B--Basic Spill Response Plans
7. In SEC 130.31:
a. Revise the section heading.
b. Revise paragraph (a) introductory text and paragraph (b).
The revisions read as follows:
SEC 130.31 Basic spill response plans.
(a) No person may transport liquid petroleum oil in a packaging having a capacity of 3,500 gallons or more unless that person has a current basic written plan that:
* * * * *
(b) A person with a comprehensive plan in conformance with the requirements of subpart C of this part 130 is not required to also have a basic spill prevention plan.
7. Revise SEC 130.33 heading to read as follows:
SEC 130.33 Basic response plan implementation.
* * * * *
8. Add subpart C to read as follows:
Subpart C--Comprehensive Oil Spill Response Plans
SEC 130.101 Applicability for comprehensive plans.
(a) Any railroad which transports any liquid petroleum or other non-petroleum oil subject to this part in a quantity greater than 42,000 gallons (1,000 barrels) per packaging must have a current comprehensive written plan meeting the requirements of this subpart; or
(b) Any railroad which transports a single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist must have a current comprehensive written plan meeting the requirements of this subpart. Tank cars carrying mixtures or solutions of petroleum oil not meeting the criteria for Class 3 flammable or combustible material in SEC 173.120 of this chapter, or containing residue, are not required to be included when determining the number of tank cars transporting liquid petroleum oil in paragraph (b) of this section.
(c) The requirements of this subpart do not apply if the oil being transported is otherwise excepted per SEC 130.2(c).
(d) A railroad required to develop a response plan in accordance with this section may not transport oil (including handling and storage incidental to transport) unless--
(1) The response plan is submitted, reviewed, and approved as required by SEC 130.111 of this part or in conformance with paragraph (e) of this section; and
(2) The railroad is operating in compliance with the response plan.
(e) A railroad required to develop a response plan in accordance with this section may continue to transport oil without an approval from FRA provided all of the following criteria are met:
(1) The railroad submitted a plan in accordance with the requirements of SEC 130.111(a);
(2) The submitted plan includes the certification in SEC 130.106(a)(1);
(3) The railroad is operating in compliance with the submitted plan; and
(4) FRA has not issued a final decision that all or part of the plan does not meet the requirements of this subpart.
SEC 130.102 General requirements for comprehensive plans.
(a) Each railroad subject to this subpart must prepare and submit a plan including resources and procedures for responding, to the maximum extent practicable, to a worst-case discharge, and to a substantial threat of such a discharge, of oil. The plan must use the National Incident Management System (NIMS) and Incident Command System (ICS):
(b) Response plan format. Each response plan must be formatted to include:
(1) Core plan: The response plan must include a core plan containing an information summary required by SEC 130.104(a)(1) of this part and information which does not change between different response zones; and
(2) Response Zone Appendix or Appendices: For each response zone included in the response plan, the response plan must include a response zone appendix that provides the information summary required by SEC 130.104(a)(2) of this part and any additional information which differs between response zones. In addition, each response zone appendix must identify all of the following:
(i) A description of the response zone, including county(s) and state(s);
(ii) A list of route sections contained in the response zone, identified by railroad milepost or other identifier;
(iii) Identification of environmentally sensitive or significant areas per route section as determined by SEC 130.103 of this part; and
(iv) The location where the response organization will deploy, and the location and description of the response equipment required by SEC 130.106(c)(6) of this part.
(c) Instead of submitting a response plan, a railroad may submit an Annex of an Integrated Contingency Plan (ICP) if the Annex provides equivalent or greater spill protection than a response plan required under this part. Guidance on the ICP is available in the Federal Register or electronically from the National Service Center for Environmental Publications (NSCEP) (https://www.epa.gov/nscep).
SEC 130.103 National contingency plan (NCP) and area contingency plan (ACP) compliance for comprehensive plans.
(a) A railroad must certify in the response plan that it reviewed the NCP (40 CFR part 300) and each applicable ACP and that its response plan is consistent with the NCP and each applicable ACP as follows:
(1) At a minimum, for consistency with the NCP, a comprehensive response plan must:
(i) Demonstrate a railroad's clear understanding of the function of the federal response structure, reflecting the relationship between the response organization's role and the Federal-On-Scene Coordinator's role in pollution response (e.g. inclusion of the OSC in a Unified Command, and a statement that the OSC has highest authority on-scene).
(ii) Include procedures to immediately notify the National Response Center; and
(iii) Establish provisions to ensure the protection of safety at the response site.
(2) At a minimum, for consistency with the applicable ACP (or Regional Contingency Plan (RCP) for areas lacking an ACP), the comprehensive response plan must:
(i) Address the removal of a worst-case discharge, and the mitigation or prevention of the substantial threat of a worst-case discharge, of oil;
(ii) Identify environmentally sensitive or significant areas as defined in section 130.5 of this part, along the route, which could be adversely affected by a worst-case discharge and incorporate appropriate deflection and protection response strategies to protect these areas;
(iii) Describe the responsibilities of the persons involved and of Federal, State, and local agencies in removing a discharge and in mitigating or preventing a substantial threat of a discharge; and
(iv) Identify the procedures to obtain any required federal and state authorization for using alternative response strategies such as in-situ burning and/or chemical agents as provided for in the applicable ACP and subpart J of 40 CFR part 300.
(b) Reserved.
SEC 130.104 Information summary for comprehensive plans.
(a) Each person preparing a comprehensive response plan is subject to the following content requirements of the plan:
(1) The information summary for the core plan must include all of the following:
(i) The name and mailing address of the railroad;
(ii) A listing and description of each response zone, including county(s) and state(s); and
(iii) The name or title of the qualified individual(s) and alternate(s) for each response zone, with telephone numbers at which they can be contacted on a 24-hour basis.
(2) The information summary for each response zone appendix must include all of the following:
(i) The name and mailing address of the railroad;
(ii) A listing and description of the response zone, including county(s) and state(s);
(iii) The name or title of the qualified individual(s) and alternate(s) for the response zone, with telephone numbers at which they can be contacted on a 24-hour basis;
(iv) The quantity and type of oil carried; and
(v) Determination of the worst-case discharge and supporting calculations.
(b) Form of information: The information summary should be listed first before other information in the plan or clearly identified through the use of tabs or other visual aids.
SEC 130.105 Notification procedures and contacts for comprehensive plans.
(a) The railroad must develop and implement notification procedures which include all of the following:
(1) Procedures for immediate notification of the qualified individual or alternate;
(2) A checklist of the notifications required under the response plan, listed in the order of priority;
(3) The primary and secondary communication methods by which notifications can be made;
(4) The circumstances and necessary time frames under which the notifications must be made; and
(5) The information to be provided in the initial and each follow-up notification.
(b) The notification procedures must include the names and addresses of the following individuals or organizations, with the ten-digit telephone numbers at which they can be contacted on a 24-hour basis:
(1) The oil spill response organization(s);
(2) Applicable insurance representatives or surveyors for each response zone;
(3) The National Response Center (NRC);
(4) Federal, state, and local agencies which the railroad expects to have pollution control responsibilities or support; and
(5) Personnel or organizations to notify for the activation of equipment and personnel resources identified in SEC 130.106.
SEC 130.106 Response and mitigation activities for comprehensive plans.
(a) Each railroad must certify that they have identified and ensured by contract or other means the private response resources in each response zone necessary to remove, to the maximum extent practicable, a worst-case discharge. The certification must be signed by the qualified individual or an appropriate corporate officer.
(b) Each railroad must identify and describe in the plan the response resources which are available to arrive onsite within 12 hours after the discovery of a worst-case discharge or the substantial threat of such a discharge. It is assumed that response resources can travel according to a land speed of 35 miles per hour, unless the railroad can demonstrate otherwise.
(c) Each plan must identify all of the following information for response and mitigation activities:
(1) Methods of initial discharge detection;
(2) Responsibilities of and actions to be taken by personnel to initiate and supervise response activities pending the arrival of the qualified individual or other response resources identified in the response plan that are necessary to ensure the protection of safety at the response site and to mitigate or prevent any discharge from the tank cars;
(3) The qualified individual's responsibilities and authority;
(4) Procedures for coordinating the actions of the railroad or qualified individual with the actions of the U.S. EPA or U.S. Coast Guard On-Scene Coordinator responsible for monitoring or directing response and mitigation activities;
(5) The oil spill response organization's responsibilities and authority; and
(6) For each oil spill response organization identified under this section, a listing of:
(i) Equipment, supplies, and personnel available and location thereof, including equipment suitable for adverse weather conditions and the personnel necessary to continue operation of the equipment and staff the oil spill response organization during the response; or
(ii) In lieu of the listing of equipment, supplies, and personnel, a statement that the response organization is an Oil Spill Removal Organization that has been approved by the United States Coast Guard under 33 CFR 154.1035 or 155.1035.
SEC 130.107 Training procedures for comprehensive plans.
(a) A railroad must certify in the response plan that it conducted training to ensure that:
(1) All railroad employees subject to the plan know--
(i) Their responsibilities under the comprehensive oil spill response plan; and
(ii) The name of, and procedures for contacting, the qualified individual or alternate on a 24-hour basis;
(2) Reporting personnel also know--
(i) The content of the information summary of the response plan;
(ii) The toll-free telephone number of the National Response Center; and
(iii) The notification process required by SEC 130.105 of this subpart.
(b) Recurrent training. Employees subject to this section must be trained at least once every five years or, if the plan is revised during the five-year recurrent training cycle, within 90 days of implementation of the revised plan. New employees must be trained within 90 days of employment or change in job function.
(c) Recordkeeping. Each railroad must create and retain a record of current training of all railroad personnel engaged in oil spill response, inclusive of the preceding five years, in accordance with this section for as long as that employee is employed and for 90 days thereafter. A railroad must make the employee's record of training available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation. The record must include all of the following:
(1) The employee's name;
(2) The most recent training completion date of the employee's training;
(3) The name and address of the person providing the training; and
(4) Certification statement that the designated employee has been trained, as required by this subpart.
(d) Nothing in this section relieves a person from the responsibility to ensure that all personnel are trained in accordance with other regulations. Response personnel may be subject to the Occupational Safety and Health Administration (OSHA) standards for emergency response operations in 29 CFR 1910.120, including volunteers or casual laborers employed during a response who are subject to those standards pursuant to 40 CFR part 311. Hazmat employees, as defined in SEC 171.8, are subject to the training requirements in subpart H of part 172 of this chapter, including safety training.
SEC 130.108 Equipment testing and drill procedures for comprehensive plans.
(a) The plan must include a description of the methods used to ensure equipment testing meets the manufacturer's minimum recommendations or equivalent.
(b) A railroad must implement and describe a drill program following the National Preparedness for Response Exercise Program (PREP) guidelines, which can be found using the search function on the USCG's Web page, http://www.uscg.mil. These guidelines are also available from the TASC DEPT Warehouse, 33141Q 75th Avenue, Landover, MD 20875 (fax: 301-386-5394, stock number USCG-X0241). A railroad choosing not to follow PREP guidelines must have a drill program that is equivalent to PREP. The plan must include a description of the drill procedures and programs the railroad uses to assess whether its response plan will function as planned, including the types of drills and their frequencies.
(c) Recordkeeping. Railroads must keep records showing the exercise dates and times, and the after action reports that accompany the response plan exercises, and provide copies to Department of Transportation representatives upon request.
SEC 130.109 Recordkeeping and plan update procedures for comprehensive plans.
(a) Recordkeeping. For purposes of this part, copy means a hardcopy or an electronic version. Each railroad must:
(1) Maintain a copy of the complete plan at the railroad's principal place of business;
(2) Provide a copy of the core plan and the appropriate response zone appendix to each qualified individual and alternate; and
(3) Provide a copy of the information summary to each dispatcher in response zones identified in the plan.
(b) Each railroad must include procedures to review the plan after a discharge requiring the activation of the plan in order to evaluate and record the plan's effectiveness.
(c) Each railroad must update its plan to address new or different conditions or information. In addition, each railroad must review its plan in full at least every 5 years from the date of the last approval.
(d) If changes to the plans are made, updated copies of the plan must be provided to every individual referenced under paragraph (a) of this section.
(e) If new or different operating conditions or information would substantially affect the implementation of the response plan, the railroad must immediately modify its plan to address such a change and must submit the change to FRA within 90 days in accordance with SEC 130.111. Examples of changes in operating conditions or information that would substantially affect a railroad's response plan are:
(1) Establishment of a new railroad route, including an extension of an existing railroad route, construction of a new track, or obtaining trackage rights over a route not covered by the previously approved plan;
(2) The name of the oil spill response organization;
(3) Emergency response procedures;
(4) The qualified individual;
(5) A change in the NCP or an ACP that has significant impact on the equipment appropriate for response activities; or
(6) Any other information relating to circumstances that may affect full implementation of the plan.
(f) If FRA determines that a change to a response plan does not meet the requirements of this part, FRA will notify the operator of any alleged deficiencies, and provide the railroad with an opportunity to respond, including an opportunity for an informal conference, to any proposed plan revisions, as well as an opportunity to correct any deficiencies.
(g) A railroad who disagrees with a determination that proposed revisions to a plan are deficient may petition FRA for reconsideration, within 30 days from the date of receipt of FRA's notice. After considering all relevant material presented in writing or at an informal conference, FRA will notify the railroad of its final decision. The railroad must comply with the final decision within 30 days of issuance unless FRA allows additional time.
SEC 130.111 Submission and approval procedures for comprehensive plans.
(a) Each railroad must submit a copy of the response plan required by this part. Copies of the response plan must be submitted to: Associate Administrator for Railroad Safety, Federal Railroad Administrator (FRA), 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Note: Submission of plans contained in an electronic format is preferred.
(b) If FRA determines that a response plan requiring approval does not meet all the requirements of this part, FRA will notify the railroad of any alleged deficiencies and provide the railroad an opportunity to respond, including the opportunity for an informal conference, to any proposed plan revisions, as well as an opportunity to correct any deficiencies.
(c) A railroad who disagrees with the FRA determination that a plan contains alleged deficiencies may petition FRA for reconsideration within 30 days from the date of receipt of FRA's notice. After considering all relevant material presented in writing or at an informal conference, FRA will notify the operator of its final decision. The railroad must comply with the final decision within 30 days of issuance unless FRA allows additional time.
(d) FRA will approve the response plan if FRA determines that the response plan meets all requirements of this part. FRA may consult with the U.S. Environmental Protection Agency (EPA) or the U.S. Coast Guard (USCG) allowing an On-Scene Coordinator (OSC) to identify concerns about the railroad's ability to respond to a worst-case discharge or implement the plan as written. EPA or the USCG would not be responsible for plan approval.
(e) If FRA receives a request from an OSC to review a response plan, FRA may require a railroad to give a copy of the response plan to the OSC. FRA may consider OSC comments on response techniques, protecting fish, wildlife and environmentally sensitive environments, and on consistency with the ACP. FRA remains the approving authority for the response plan.
(f) A railroad may ask for confidential treatment in accordance with the procedures in 49 CFR 209.11.
SEC 130.112 Response plan implementation for comprehensive plans.
If, during transportation of oil subject to this part, a discharge of oil occurs--into or on the navigable waters; on the adjoining shorelines to the navigable waters; or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of, the United States--the person transporting the oil must implement the plan required by SEC 130.101, and in a manner consistent with the National Contingency Plan, 40 CFR part 300, or as otherwise directed by the On-Scene Coordinator.
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
9. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-121, sections 212-213; Pub. L. 104-134, section 31001; 49 CFR 1.81 and 1.97.
10. In 171.7, redesignate paragraphs (h)(45) through (h)(51) as (h)(46) through (h)(52) and add new paragraph (h)(45) to read as follows:
SEC 171.7 Reference material.
* * * * *
(h) * * *
(45) ASTM D7900-13 Standard Test Method for Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography, 2013, into SEC 173.121.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS
11. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97.
12. In SEC 173.121 add paragraph (a)(2)(vi) to read as follows:
SEC 173.121 Class 3--Assignment of packing group.
* * * * *
(a) * * *
(2) * * *
(vi) Petroleum products containing known flammable gases--Standard Test Method for Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography (ASTM D7900). The initial boiling point is the temperature at which 0.5 weight percent is eluted when determining the boiling range distribution.
* * * * *
PART 174--CARRIAGE BY RAIL
13. The authority citation for part 174 is revised to read as follows:
Authority: 49 U.S.C. 5101-5128; 33 U.S.C. 1321; 49 CFR 1.81 and 1.97.
14. In SEC 174.310 add paragraph (a)(6) to read as follows:
SEC 174.310 Requirements for the operation of high-hazard flammable trains.
* * * * *
(a) * * *
(6) Oil Spill Prevention and Response Plans. The additional requirements for petroleum oil transported by rail in accordance with part 130 of subchapter B.
* * * * *
15. Add section SEC 174.312 to read as follows:
SEC 174.312 HHFT information sharing notification for emergency responders.
(a) Prior to transporting a high-hazard flammable train (HHFT) as defined in SEC 171.8 of this subchapter, a railroad must provide each State Emergency Response Commission (SERC), Tribal Emergency Response Commission (TERC), or other appropriate state delegated agency for further distribution to appropriate local authorities, upon request, in each state through which it operates a HHFT the information as described in paragraphs (a)(1) and (2) of this section.
(1) At a minimum, the information railroads are required to provide to the relevant state or tribal agencies must include the following:
(i) A reasonable estimate of the number of HHFTs that the railroad expects to operate each week, through each county within the state or through each tribal jurisdiction;
(ii) The routes over which the HHFTs will operate;
(iii) A description of the hazardous material being transported and all applicable emergency response information required by subparts C and G of part 172 of this subchapter;
(iv) A HHFT point of contact: at least one point of contact at the railroad (including name, title, phone number and address) with knowledge of the railroad's transportation of affected trains and responsible for serving as the point of contact for the SERC, TERC, or other state or tribal agency responsible for receiving the information; and
(v) If a route identified in paragraph (a)1)(ii) of this section is additionally subject to the comprehensive spill plan requirements in subpart C of part 130 of this chapter, the information must include a description of the response zones (including counties and states) and the contact information for the qualified individual and alternate, as specified under SEC 130.104(a);
(2) Recordkeeping and transmission. The HHFT notification must be maintained and transmitted in accordance with all of the following requirements:
(i) On a monthly basis, railroads must update the notifications. If there are no changes, the railroad may provide a certification of no change.
(ii) Notifications and updates may be transmitted electronically or by hard copy.
(iii) If the disclosure includes information that railroads believe is security sensitive or proprietary and exempt from public disclosure, the railroads should indicate that in the notification.
(iv) Each point of contact must be clearly identified by name or title and role (e.g., qualified individual, HHFT point of contact) in association with the telephone number. One point of contact may fulfill multiple roles.
(v) Copies of the railroad's notifications made under this section must be made available to the Department of Transportation upon request.
(b) Reserved.
Issued in Washington, DC, on July 13, 2016, under the authority of 49 U.S.C. 5103(b), 33 U.S.C. 1321, and the authority delegated in 49 CFR 1.97.
William Schoonover,
Acting Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2016-16938 Filed 7-28-16; 8:45 am]
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