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Regulatory Update   |   Feb 25th, 2015 Changes Proposed to Address Oil Spill Response Planning for Railroads

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Recent train derailments and ensuing oil spills are pressuring state and federal agencies to implement more stringent regulations for oil spill response planning.

Regulatory action has in fact been in progress for some time. But while more complex requirements will ultimately be proposed, uncertainty remains regarding specifics or a timeline for final approval and implementation. By being aware of the current situation, railroads can be better prepared for compliance when necessary.

Rulemaking Status

Although the Federal Railroad Administration has historically been the prime regulatory agency overseeing the railroad industry, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has regulatory authority over the transportation of oil by rail.

Last year, after several high profile derailments, PHMSA took the first step toward regulatory change by issuing an Advanced Notice of Proposed Rulemaking (ANPRM – 79 FR 45079) to seek comment on nine specific areas where current regulations could be improved or enhanced to protect public and environmental safety. While the comment period has long ended, PHMSA has not given any indication when a formal rulemaking will be made or when a final rule will be enacted.

Anticipated Changes

Based on comments submitted to PHMSA, railroads can expect to be required to develop much more complex Oil Spill Response Plans (OSRP) for all Class 3 liquids, not just liquid petroleum oil.

A final rule is likely to include the following requirements:

  1. PHMSA will remain the primary federal agency responsible for enforcing the revised railroad OSRP regulations. Comprehensive OSRP must be submitted to PHMSA for their review to confirm compliance with the regulatory requirements. Under the revised regulations, PHMSA may also require that basic OSRP be submitted for review.
  2. The threshold for requiring a comprehensive OSRP will likely be set at five tank car loads or intermodal portable tank loads, or more per train transporting liquid petroleum and non-petroleum oil (Class 3 and non-Class 3), as well as other Class 3 hazardous materials (e.g., ethanol). The threshold for a basic OSRP will likely remain at 3,500 gallons, but is expected to be required for any Class 3 hazardous material, not just liquid petroleum oil.
  3. Requirements for a basic OSRP may be revised to be more stringent and, at a minimum, become more similar to the current comprehensive OSRP requirements while the current comprehensive OSRP requirements will apply to more trains/railroads and become more stringent than they now are.
  4. Regulatory requirements for the comprehensive OSRP are expected to be more similar to the U.S. Environmental Protection or U.S. Coast Guard response plan requirements, and will likely include:
  • Definition of the worst case discharge;
  • Identification of socio-economic or environmental sensitive areas and/or significant water crossings along specific transportation routes;
  • Site-specific response strategies for sensitive areas and/or significant water crossings;
  • Tiered response efforts based on the location of the spill and the amount spilled, with required minimum response efforts for each tier, including maximum allowed response times, required types and amounts of response equipment with specified minimum capabilities, and consideration of factors that may affect the response effort (topography, adverse weather, etc.);
  • Evidence of response equipment availability through ownership, by contract, or a combination, as well as written inspection, testing and preventative maintenance procedures; and
  • Training, exercises, and drills for employees depending on their job and spill response roles and duties.
  • Copies of final comprehensive OSRP will need to be provided to Federal, Tribal, State, and/or Local Agencies, but security sensitive information may be withheld or controlled.

States Taking Action

Since PHMSA has not developed a schedule for publishing or implementing the proposed OSRP regulations, several states including Minnesota, New York, and Washington have proposed their own rules to address the safe transport of crude oil within their boundaries. These state rules are not coordinated to be consistent (and in some cases are stricter than the proposed Federal requirements). As a result, OSRP requirements could change when a train crosses a state border, which would increase regulatory compliance costs and may even cause operational delays.

Be Prepared Now

While uncertainty remains, change is coming. Regulations will no doubt become more stringent. Compliance will be more complex, time consuming and costly. Additional time and money will be needed year over year to maintain the required plans and spill response readiness. Training programs will be necessary. But preparing now will ensure regulatory and operational success when the rules are final. Assessing current plans and preparedness is a key first step. Independent experts can help identify areas for improvement or enhancement to reduce potential liabilities.

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