Regulatory Update   |   Jul 22nd, 2016 PHMSA Issues NPRM for Railroad Oil Spill Response Planning Regulations

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On July 13, 2016, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) submitted the Notice of Proposed Rulemaking (NPRM) for regulations “related to preparedness and planning for the potential of train accidents” that may cause oil spills. Publication of the NPRM in the Federal Register is pending.  

The proposed regulations will expand the comprehensive oil spill response plan (OSRP) requirements for railroads that transport liquid petroleum oil. Key provisions include:

  • Comprehensive OSRP will be required for a “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;” 
  • Regulations will only apply to liquid petroleum oil that meet the definition of Class 3 flammable liquids, such as gasoline, diesel fuel, other distillates, and some crude oil; the proposed regulations will not cover other Class 3 flammable liquids.
  • Definition of “liquid petroleum oil” (49 CFR 130.2(c)(1)) will not be revised, so the regulations will not apply to mixtures that contain less than 10% petroleum oil, such as denatured ethanol or diluted waste water. 
  • Railroads will need to provide adequate spill response resources by contract or other means for a “worst case discharge” (WCD), which is defined as “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” on a given route.
  • Adequate spill response resources must be available within 12 hours of each portion of the routes that are reasonably expected to be used by trains covered by these regulations; however, PHMSA notes that they will consider adopting shorter response time requirements in the final rule. 
  • Regulations establish the comprehensive OSRP content and format, training requirements, and requirements that drills and exercises be performed in accordance with the Preparedness for Response Exercise Program (PREP) Guidelines that were made available on April 11, 2016.
  • Comprehensive OSRP will need to be reviewed and approved by the Federal Railroad Administration (FRA) before regulated trains can use the given routes covered by the OSRP, and the OSRP will need to be reviewed, revised (as needed), and resubmitted to the FRA every five years or when there is a significant change affecting operation of the plan (e.g. establishing a new route, change in response resources).  However, the regulations will allow a railroad to continue operations after the OSRP was submitted and while FRA approval is pending.  

TRC will review the final rulemaking when it is published and note any changes from the proposed regulations. Although some uncertainty remains, regulations will become more stringent and compliance will be more complex, time consuming, and costly. Additional time and money will be needed going forward to maintain the required plans, and to develop and maintain training and spill response readiness. 

Preparing now will ensure regulatory and operational success when the new rules are finalized and the first step is to assess the current plans and spill response preparedness, and independent experts can help identify gaps in the current programs, as well as areas for improvement, to reduce potential liabilities.