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Spill response plans for oil trains: Major improvements needed in proposed rules


A 90-car oil train with Bakken crude oil derailed and caught fire in Aliceville, Ala., in November 2013. Photo: John Wathen, Hurricane Creekkeeper
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Riverkeeper and partner groups submit comments on a federal agency proposal that falls short of the law, logic, and local community safety.

A 90-car oil train with Bakken crude oil derailed and caught fire in Aliceville, Ala., in November 2013.  Photo: John Wathen, Hurricane Creekkeeper

A 90-car oil train with Bakken crude oil derailed and caught fire in Aliceville, Ala., in November 2013.
Photo: John Wathen, Hurricane Creekkeeper

In late 2014, in the wake of a series of catastrophic oil and ethanol train derailments across the nation, the federal government announced that it was reconsidering whether robust “oil spill response plans” should be developed by railroads transporting dangerous substances.

This agency – the Pipeline and Hazardous Materials Safety Administration, or PHMSA – had originally decided (in 1996) that only the largest rail “tank cars” holding more than 1,000 barrels of oil would be required to have spill response plans. Because no tank cars with a capacity of 1,000 barrels of oil existed at that time, before then, after then, or even now, the agency finally, in 2014, admitted that the number of railroads with comprehensive spill response plans was probably nonexistent.

In that 2014 rulemaking proposal, PHMSA proposed to remedy this reckless regulation, and called for comments on a proposal which would require more railroads develop these “comprehensive” oil spill response plans. Riverkeeper, along with Scenic Hudson, the Waterkeeper Alliance, and a host of other organizations around the nation, wrote in, calling for heightened spill response plans around the nation – to protect waterways, communities, and the environment.

Then we waited.

In 2015, when PHMSA still hadn’t taken action, we sent in this letter, asking for the agency to step up. We received an offer to meet with the Administrator of the Agency, but the Administrator’s office never scheduled a meeting with us.

In 2016, we finally were alerted to a proposed final rule.

At the end of July 2016, PHMSA finally published a proposal that would, among other things:

  • Require comprehensive oil spill response plans for trains carrying oil in “unit trains” (with large numbers of oil tank cars);
  • Require that the Federal Railroad Administration approve these plans;
  • Require railroads to plan for a “worst-case scenario” – which the agency defined as either 300,000 gallons of oil spilled, or 15% of a train’s total load.
  • Require railroads to have the ability to get oil spill response equipment and personnel to an oil spill site within 12 hours of an oil spill.

This week, on September 27, 2016, Riverkeeper, along with Sierra Club, Waterkeeper Alliance,, Earthjustice, and a host of other organizations, sent in these comments to the proposal.

Our organizations felt that the details of PHMSA’s plan fall short of what is required under federal law (the Clean Water Act and the Oil Pollution Act of 1990) for spill response planning. Here’s how:

1. Even one tank car of oil can cause substantial devastation – to the environment, to people, to the economy; exempting trains carrying fewer than 20 tank cars of oil is a reckless loophole. We called for all trains moving oil, petroleum products, and ethanol, in any quantity, to have comprehensive oil spill response plans.

2. For oil refineries, oil barges, underground or above-ground oil tanks, and other storage units for oil, a “worst case discharge” is defined as the full amount of oil that could spill. The agency here, for oil trains, is proposing a “worst case” scenario at just 15% of a trains total load – less than one-fifth containment. There is no basis for this gross departure from the plain-language definition of “worst case.”

port-ewen-intake-radius 3. Most recklessly, the agency proposed that railroads need only have assets within 12 hours’ distance (calculated as 420 miles) of any spill. That means that, for a derailment that threatens Mid-Hudson drinking water systems, the railroad (CSX, Inc.) could legally have booms, boats, and personnel in a warehouse as far away as Cleveland. (See image at right.)

For the Hudson River, and a host of other rivers, communities, and critical areas like parks, fisheries, and ports, arriving on the scene of a crude oil train derailment disaster 12 hours later is simply unacceptable.

In our comments on this 12-hour response time proposal, we noted for the agency that its own “Emergency Response Guidebook” – the go-to source on what to do when something goes wrong – PHMSA calls for swift response and lots of action in the first hour after an oil spill.

Also, in the U.S. Coast Guard and U.S. EPA “Area Contingency Plan” – the region’s official federal oil spill response manual – the Coast Guard and EPA call for response assets like booms and personnel to be on the scene of a derailment within the “critical first 30 minutes.”

Finally, we noted that the tank cars themselves – those large, black, pill-shaped rail cars now ubiquitous on our railroads – were specifically designed to last up to 100 minutes in a fire, to give responders an opportunity to move them out of harm’s way. These “thermal-tolerance” standards were reaffirmed just last year, by PHMSA – the same agency that now would allow those responders to take up to 720 minutes to get to a derailment site. This will most certainly allow spills and fires involving a handful of railcars to turn into compounded and cumulatively more devastating disasters.

In our comments, we stressed the need to have robust oversight of these plans, to make the railroads demonstrate compliance (not just simply assert they are in compliance, with no one checking to make sure), and to develop plans that prepared for the absolute worst-case disaster.

We also submitted, with Scenic Hudson, comments that specifically highlighted areas of the Hudson River where environmentally significant resources, special historic or economic characteristics, or particularly vulnerable communities indicated a need for heightened spill response planning and preparation.

It is important to note that the best oil spill response decision that can be made is to keep the oil, hazardous material, or petroleum product in the ground. Spill response plans are – inherently – already a worst-case scenario. Most oil spilled into the environment is never recovered, and there is ample evidence that oil spills can permanently scar communities, landscapes, and the environment.

Prevention should be the priority, but in the absence of precaution, the oil spill response plans we do develop must fully comply with the law, and must be as robust as possible. Here, the agency’s proposal does not go far enough to protect the people or the environment. Stay tuned for updates on oil train spill response planning.

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