[Federal Register Volume 79, Number 148 (Friday, August 1, 2014)]
[Proposed Rules]
[Pages 45079-45083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17762]



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), 

ACTION: Advance Notice of Proposed Rulemaking (ANPRM).


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

[[Page 45080]]

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, (202) 366-8553, 
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, (202) 493-6245, 
Office of Safety Assurance and Compliance, Federal Railroad 
Administration; or Roberta Stewart, (202) 493-1345, Office of Chief 
Counsel, Federal Railroad Administration.



    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 

    \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.

    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 
    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 
    (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.

[[Page 45081]]


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\

    \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.

    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

[[Page 45082]]

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 

    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.

    \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.

    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 

    \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.

    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.

    \5\ A train consist is considered the rolling stock, exclusive 
of the locomotive, making up a train.

    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 
    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 
    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 
    6. What costs might be incurred to conduct training, drills, and 
equipment testing? To the extent possible, please provide detailed 
    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 
    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 

[[Page 45083]]

    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]