[Federal Register Volume 79, Number 148 (Friday, August 1, 2014)]
[Proposed Rules]
[Pages 45079-45083]
[FR Doc No: 2014-17762]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 130 and 174

[Docket No. PHMSA-2014-0105 (HM-251B)]
RIN 2137-AF08

Hazardous Materials: Oil Spill Response Plans for High-Hazard
Flammable Trains

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Advance Notice of Proposed Rulemaking (ANPRM).

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SUMMARY: PMHSA is issuing this ANPRM in conjunction with a notice of
proposed rulemaking (NPRM)--Hazardous Materials: Enhanced Tank Car
Standards and Operational Controls for High-Hazard Flammable Trains
(2137-AE91), which PHMSA is also publishing today. In this ANPRM,
PHMSA, in consultation with the Federal Railroad Administration (FRA),
seeks comment on potential revisions to its regulations that would
expand the applicability of comprehensive oil spill response plans
(OSRPs) to high-hazard

flammable trains (HHFTs) based on thresholds of crude oil that apply to
an entire train consist.

DATES: Comments must be received by September 30, 2014.

ADDRESSES: You may submit comments identified by the docket number
PHMSA-2014-0105 (HM-251B) by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To the Docket Management System; Room W12-
140 on the ground floor of the West Building, 1200 New Jersey Avenue
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. To avoid
duplication, please use only one of these four methods. All comments
received will be posted without change to http://www.regulations.gov
and will include any personal information you provide.
    Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office located at U.S. Department of Transportation, West
Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
    Privacy Act: In accordance with 5 USC 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, to www.regulations.gov, as described in
the system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
filed comments will be fully considered. If you wish to provide
comments containing proprietary or confidential information, please
contact the agency for alternate submission instructions.

FOR FURTHER INFORMATION CONTACT: Rob Benedict,<PHONE_NUMBER>,
Standards and Rulemaking Division, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Ave. SE., Washington, DC 20590-0001; Karl Alexy,<PHONE_NUMBER>,
Office of Safety Assurance and Compliance, Federal Railroad
Administration; or Roberta Stewart,<PHONE_NUMBER>, Office of Chief
Counsel, Federal Railroad Administration.

SUPPLEMENTARY INFORMATION:

Background

    The Federal Water Pollution Control Act (FWPCA) as amended by the
Oil Pollution Act of 1990 (OPA), directs the President, at section
311(j)(1)(C) (33 U.S.C. 1321(j)(1)(C)) and section 311(j)(5) (33 U.S.C.
1321(j)(5)), respectively, to issue regulations ``establishing
procedures, methods, and equipment and other requirements for equipment
to prevent discharges of oil \1\ and hazardous substances from vessels
and from onshore facilities and offshore facilities, and to contain
such discharges.'' OPA 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 OSRPs. 33 U.S.C. 1321(j)(5), Pub. L. 101-380 (1990).
The authority to regulate transportation-related onshore facilities
(i.e., motor carriers and railways) was later delegated to PHMSA's
predecessor agency, the Research and Special Programs Administration
(RSPA).
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    \1\ For purposes of 49 CFR Part 130, oil means oil of any kind
or in any form, including, but not limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with the wastes other than dredged
spoil. 49 CFR 130.5. This includes non-petroleum oil such as animal
fat, vegetable oil, or other non-petroleum oil. Ethanol is not
included in this definition.
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    On June 17, 1996, RSPA published a final rule issuing requirements
that meet the intent of the FWPCA (61 FR 30533). This rule adopted
requirements for packaging, communication, spill response planning, and
response plan implementation intended to prevent and contain spills of
oil during transportation. Regarding spill response planning, a basic
OSRP is required for oil shipments in a packaging having 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).
    RSPA clarified that the purpose of an OSRP is to ensure that
personnel are trained and available and equipment is in place to
respond to an oil spill, and that procedures are established before a
spill occurs, so that required notifications and appropriate response
actions will follow quickly when there is a spill. Neither the basic
nor the comprehensive OSRP is required to address response on a
vehicle- or location-specific basis. A nationwide, regional or other
generic plan is acceptable, provided that it covers the range of spill
scenarios that the owner or operator foreseeably could encounter. Thus,
scenarios ranging from a minor discharge to a ``worst-case discharge,''
must be addressed, as well as the range of topographical and
climatological conditions the owner or operator may face. The OSRP also
must describe the response when the discharge results from, or is
accompanied by, a complicating condition, such as explosion or fire.
RSPA outlined that a comprehensive OSRP must, at a minimum, address the
following:
    (1) Range of response scenarios that foreseeably could occur;
    (2) Qualified individual, the alternate qualified individual, and
all other personnel with a role in spill response;
    (3) Training, including drills, required for each of these persons;
    (4) Equipment necessary for response to the maximum extent
practicable in each of the identified scenarios;
    (5) Means by which the availability of personnel and equipment will
be ensured to respond to a spill to the maximum extent practicable;
    (6) Governmental officials and others to be notified in the event
of a spill, and the notification procedure to be followed;
    (7) Means for communicating among responsible personnel and between
personnel and officials during a response; and
    (8) Procedures to be followed during a response.
    The following table 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.

[GRAPHIC] [TIFF OMITTED] TP01AU14.007

Request for Public Comment

    As discussed above, we believe that 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), based on the understanding that 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 oil is in a quantity greater than 42,000 gallons
per package. 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 single package.\2\
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    \2\ The 2014 AAR's Universal Machine Language Equipment Register
(UMLER) numbers showed 5 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.
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    In setting the current OSRP threshold quantities, RSPA relied on
the FWPCA mandate for regulations requiring a comprehensive OSRP to be
prepared by an owner or operator of 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 exclusive economic zone.'' 33 U.S.C.
1321(j)(5)(C)(iv). For a more detailed discussion of RSPA's
codification of the OSRP requirements into the HMR and the
corresponding mandates from the FWPCA which were the baseline for such
regulations, see the background section of RSPA's June 17, 1996, final
rule (61 FR 30532). In that final rule, RSPA discussed a 1,000,000-
gallon threshold that would apply to

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shipments rather than packages as an option. Specifically, RSPA stated,

    Conversely, the 1,000,000-gallon threshold adopted by EPA
[Environmental Protection Agency] is contingent on several factors,
including restrictive provisions that the facility may not transfer
oil over water to or from vessels and that the facility's proximity
to a public drinking water intake must be sufficiently distant to
assure that the intake would not be shut down in the event of a
discharge. Further, the EPA threshold refers to the capacity not of
a single fixed storage tank, but of the entire facility, including
barrels and drums stored at the facility. In summary, this example
also is not analogous to hazards routinely encountered during
transportation by railway and highway.
    During the June 28, 1993 public meeting, the ``substantial
harm'' threshold was discussed at length, but participants did not
agree on what volume of oil reasonably could cause substantial harm
to the marine environment. Also, the 42,000-gallon threshold is
supported by a number of comments to the docket citing its use by
the EPA in related sections of the Code of Federal Regulations.
Consequently, RSPA believes its determination to use a threshold
value of 42,000 gallons in a single packaging is appropriate and
reasonable.

    In the past, and in the absence of agreement among participants in
the rulemaking process on a volume of oil that could reasonably be
expected to cause substantial harm to the environment, we stated that
42,000 gallons in a single packaging is a reasonable quantity of liquid
for a finding of substantial harm. As discussed in the June 17, 1996,
RSPA final rule, an incident involving the transportation of 1,000,000
gallons of crude oil could cause substantial harm, even if not in a
single packaging. This finding is consistent with Facility Response
Plans (FRPs) for ``substantial harm'' sites (see 40 CFR 112.20 and
112.21). FRP facilities require an approved plan for one million
gallons or more of oil storage capacity, or transfers of oil over water
in vessels that have oil storage capacities of 42,000 gallons or more.
While a single tank car is not likely to hold 42,000 gallons of crude
oil, the increasing reliance on HHFTs \1\ poses a risk that was not
considered when RSPA made its determination on that threshold.
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    \1\ In today's NPRM 2137-AE91, the proposed definition for an
HHFT in section 171.8 is: 20 or more carloads in a single train of a
Class 3 flammable liquid. This definition does not include
combustible liquids.
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    The consequences, including environmental impacts, of a derailment
of an HHFT have been demonstrated in recent train accidents in Lac
M[eacute]gantic, Quebec, Canada; Aliceville, AL; and Casselton, ND.\2\
On January 23, 2014, in response to its investigation of the Lac-
M[eacute]gantic accident,\3\ the National Transportation Safety Board
(NTSB) issued three recommendations to PHMSA. Of note here is Safety
Recommendation (SR) R-14-5,\4\ which requested 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. In this recommendation, the NTSB raised a concern
that, ``Because there is no mandate for railroads to develop
comprehensive plans or ensure the availability of necessary response
resources, carriers have effectively placed the burden of remediating
the environmental consequences of an accident on local communities
along their routes.'' In light of these accidents and NTSB SR R-14-5,
PHMSA is now re-examining whether it is more appropriate to consider
the train in its entirety when setting the threshold for comprehensive
OSRPs.
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    \2\ For more extensive discussion of recent accidents involving
crude oil transportation by rail, please see the NPRM for 2137-AE91,
published today.
    \3\ http://www.bst-tsb.gc.ca/eng/enquetes-investigations/rail/2013/R13D0054/R13D0054.asp.
    \4\ http://www.ntsb.gov/doclib/recletters/2014/R-14-004-006.pdf.
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    Considering the typical 30,000-gallon capacity rail tank car used
for the transport of crude oil, a 1,000,000-gallon threshold for oil on
a train would translate to requiring a comprehensive OSRP for trains
composed of approximately thirty-five cars of crude oil; all of the
aforementioned train accidents involved train consists \5\ with more
than 70 tank cars of crude oil, and PHMSA expects the business
practices for HHFTs would result in train consists that exceed 35 crude
oil cars. Using a 42,000 gallon per train consist threshold, PHMSA
expects that a train consist with two crude oil carloads would trigger
the requirement for comprehensive OSRPs; PHMSA seeks comment below on
what impact that would have on current business practices for shipping
crude oil by rail.
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    \5\ A train consist is considered the rolling stock, exclusive
of the locomotive, making up a train.
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    In order to inform a potential future NPRM that would adjust
threshold quantities to trigger comprehensive OSRP requirements for
HHFTs, PHMSA seeks comments on the questions below. The most helpful
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.

    1. When considering appropriate thresholds for comprehensive
OSRPs, which of the following thresholds would be most appropriate
and provide the greatest potential for increased safety? What
thresholds would be most cost-effective?
    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.
    2. In exploring the applicability of comprehensive OSRP
requirements to trains carrying large volumes of crude oil, are the
requirements of comprehensive OSRPs clear enough for railroads and
shippers to understand what would be required of them? If not, what
greater specificity should be added?
    3. In exploring the applicability of comprehensive OSRP
requirements to trains carrying large volumes of crude oil, are
there elements that should be added, removed, or modified from the
comprehensive OSRP requirements? Please consider the regulations
covering other modes of transporting crude oil (such as pipelines),
and the relevant differences between modes of operation, in your
response.
    4. What costs might be incurred in developing comprehensive
OSRPs and submitting them to FRA for approval? To the extent
possible, please provide detailed estimates.
    5. What costs might be incurred to procure or contract for
resources to be present to remove discharges? In these estimates,
what are your assumptions about the placement of equipment along the
track, types of equipment, and maximum time to contain a worst-case
discharge?
    6. What costs might be incurred to conduct training, drills, and
equipment testing? To the extent possible, please provide detailed
estimates.
    7. It is assumed that most railroads and shippers currently have
basic OSRPs in place. What, if any, aspects beyond the basic plan
requirements do these plans voluntarily address? To what extent do
current plans meet the comprehensive OSRP requirements, including
procurement or contracting for resources to be present to respond to
discharges?
    8. To what extent should recent commitments to the Secretary of
Transportation's ``Call to Action,'' and other voluntary industry
actions, inform the exploration of additional planning requirements
for trains carrying large volumes of crude oil? For example, how
should voluntary emergency response equipment inventories and
hazardous material training efforts be factored into the exploration
of additional planning requirements? Should PHMSA require that
resources be procured to respond on a per route basis, or at the
state/county/city/etc. level? What is the rationale for your
response?

    9. 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? Should other federal agencies with responsibilities for
emergency response under the National Contingency Plan (e.g. U.S.
Coast Guard, EPA) also review and comment on the comprehensive OSRP
with PHMSA?

    Issued in Washington, DC, on July 23, 2014, under authority
delegated in 49 CFR 1.97.
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2014-17762 Filed 7-31-14; 8:45 am]
BILLING CODE 4910-60-P