Tag Archives: Office of Emergency Services (OES)

Law professor: 9 ways that STATES can help regulate railroad safety and transportation

Repost from LegalPlanet.org
[Editor:  Federal preemption under the Commerce Clause is NOT the last and only word on regulating crude oil trains.  Here are some suggestions for State regulation by Professor Jayni Foley Hein, executive director of UC Berkeley School of Law’s Center for Law, Energy & the Environment.  – RS]

Oil By Rail: Nine Things California Can Do to Increase Safety

While FRA Considers New Federal Regulations, States Can Ramp Up Prevention and Emergency Response
By Jayni Hein, June 24, 2014

At a joint Senate and Assembly hearing last week on oil by rail safety in California, some lawmakers expressed frustration at slow federal action, and asked what California can do to increase public safety. My testimony focused on federal preemption issues, defining areas where the state can regulate, and those where it is preempted by the Commerce Clause, Federal Railroad Safety Act (FRSA), or ICC Termination Act, or all three.

While the Department of Transportation (DOT) and Federal Railroad Administration (FRA) have primary authority over railroad safety and transportation, the California Public Utilities Commission (CPUC) shares authority with the federal government to enforce federal rail safety requirements and conduct inspections. And even with strong federal preemption provisions, there are actions that California and other states can take right now to increase public safety in light of the enormous growth of oil by rail.

Here are nine things the state can do:

1. Prioritize track and rail car inspection.

California has more than 5,000 miles of mainline railroad track. Inspection of track and rail cars is vital, as derailments are the most common type of train accident in the United States. A national analysis of freight train derailments from 2001 to 2010 on the Class I freight railroads’ mainline track found that broken track rails or track welds were the leading cause of derailments. Broken rail car wheels and track obstructions are also common causes of derailments. (Liu, et. al. 2012).

Governor Brown’s new budget includes funding to hire seven additional rail safety inspectors for the CPUC, paid for by rail industry assessments. The state should ensure that it has enough CPUC inspectors to accommodate the projected rise in oil by rail traffic each year. If seven new inspectors are needed right now; we will likely need many more by 2016, when oil by rail shipments are projected to increase as much as 25-fold, to 150 million barrels per year.

2. Obtain robust data on rail routing, rail car contents, and accident causes.

California agencies need more information from FRA and the railroads on routes, frequency, and rail car contents, as well as data on train derailments, their causes, and risk factors specific to crude by rail transit. The state should obtain this data from FRA – a recommendation echoed in the June 10, 2014 California Inter-Agency Working Group Report. The CPUC needs both national data and California-specific data in order to do its job.

3. Conduct an analysis of the risks that crude by rail poses to the state, including identification of high-risk areas of track, and propose specific measures to increase safety.

The legislature should consider requiring an annual report from the CPUC on the specific risks that crude by rail poses to the state, and measures that it can take to increase safety. Voluntary agreements with the railroads may also be an important outgrowth of this state-specific analysis that can inform where and how to direct limited state resources. As previewed above, this state analysis should be guided by the most recent data available from FRA and the railroads.

The legislature could also consider requiring information sharing among the relevant state agencies, including CPUC, Office of Emergency Services (OES), Office of Spill Prevention and Response (OSPR), California Environmental Protection Agency, and more.

4. Require state oil spill contingency plans for trains transporting oil into the state.

SB 1319 (Pavley) would require state oil spill contingency plans for trains transporting oil into the state. Such a state-mandated plan would provide an opportunity to secure better emergency response protection for the environment and public safety.

5. Get access to daily information on oil shipments into California, and ensure that state and local emergency personnel can access this information immediately in the event of an accident.

A recent DOT Emergency Order requires that each railroad operating trains containing more than 1 million gallons of Bakken crude oil, or approximately 35 tank cars, to provide states with weekly notice that includes estimated volumes of Bakken oil  transported per week and routing information.

The state should also have immediate access to real-time shipment information, assuming the technology exists to enable this. The state should also ensure that local emergency response personnel are well trained to deal with any crude by rail accident, and can readily identify the contents of any shipment. Training and information sharing with local emergency response personnel can be paid for by the industry, using a fee or assessment like the 6.5 cent/barrel fee on all oil imports recently approved by the state.

6. Advocate for more stringent federal safety regulations.

Legislative pronouncements, as well as the CPUC’s robust participation in the Rail Safety Advisory Committee (RSAC) are needed to secure better federal standards.

California joins others states such as New York in advocating for more stringent rail car design standards (phasing out DOT-111 cars, for example), mandatory placards on rail cars identifying Bakken crude oil,  expediting Positive Train Control, and requiring electronically-controlled pneumatic brakes on all crude oil trains. The state can also advocate for further federal analysis of possible routing changes, to avoid sensitive population and habitat areas.

7. Monitor compliance with new voluntary measures that the railroads agreed to implement this year.

As part of a February 2014 agreement with DOT, the Class I railroads will perform one additional internal-rail inspection each year than required by the FRA on routes over which trains carry 20 or more tank cars of crude oil, and will conduct at least two track geometry inspections over these routes. The  railroads also agreed to use end-of-train braking systems on all oil trains, and lower train speed in federally-designated “high-threat-urban-areas.”

The CPUC should monitor the railroads’ compliance with these voluntary measures. At the same time, CPUC and the state should advocate for making these voluntary measures mandatory, by issuing new or revised FRA regulations.

8. Consider issuing guidance to local permitting agencies on requirements for offloading facilities and oil refinery expansion.

There are currently at least five crude-by-rail refinery projects being pursued in California: one in Pittsburg, one in Benicia, two in Bakersfield, and one in Wilmington. There is a patchwork of local permitting agencies responsible for land use, air, water, and other local safety and environmental issues that may be relevant to offloading sites and refineries.

Local government and permitting agencies can deny land use and other permits for refineries and offloading facilities if they find safety risks or improper environmental mitigation under statutes like the California Environmental Quality Act (CEQA). But, local agency personnel may have varying levels of expertise in oil and rail issues and may apply permitting criteria inconsistently. As such, the state, through the Office or Planning and Research (OPR), should consider issuing guidance to local permitting agencies on necessary permits and requirements for offloading facility or refinery expansion.

9. Provide guidance on CEQA review and the public comment and participation process, especially relevant to environmental justice communities that may be located near offloading sites or refineries.

While rail accidents can happen anywhere, communities near offloading sites and refineries are especially vulnerable to oil by rail transport risks. The state can provide information and guidance to these communities on opportunities for engagement, comment and participation.

In addition, the state can encourage railroads, industry and refineries to work directly with potentially affected communities to disclose as much information as possible about shipments, safety measures, and how community members can participate in the process to make their communities safer.

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    Governor’s Oil by Rail Report Highlights Need for Sustainable Funding and Close Coordination to Protect Public Safety

    Repost from California Department of Fish & Wildlife
    [Editor: This is a major, highly significant report from the Governor’s Rail Safety Working Group.   The recommendations aren’t nearly as strong as needed, but they’re a step in the right direction.  Download the Governor’s Report, OIL BY RAIL SAFETY IN CALIFORNIA.  See the Governor’s Office of Emergency Services announcement.  See also coverage in ReutersSFGate, Huffington Post.   – RS]

    Oil by Rail Report Highlights Need for Sustainable Funding and Close Coordination to Protect Public Safety

    June 10, 2014 by Janice Mackey

    Large Increase in Oil by Rail Points to Need for Long-Term Solutions

    In an effort to prepare state and local emergency responders for the dramatic increase in shipments of oil by railroad in California communities, the state Interagency Working Group on Oil by Rail Safety today released a report outlining its recommendations to improve public safety during the transport of oil by rail in California.

    “Keeping California’s residents and environment safe from oil spills from rail deliveries, pipelines, or marine shipments is a top public safety priority,” said Mark Ghilarducci, Director of the California Office of Emergency Services. “Implementing these recommendations will bolster a growing array of prevention, response and regulatory efforts.”

    State energy officials estimate that crude oil imports by rail will increase from 1 percent of total California oil imports in 2013 to 25 percent of imports by 2016. Most of the increase is due to a sharp rise of imports from Canada and North Dakota in the Bakken shale formation.

    In response, Governor Edmund G. Brown Jr. included proposals in his budget to prepare the state for the influx of oil by rail, including increasing safety inspections of railways by the Public Utilities Commission and establishing an inland oil spill preparedness and response program.

    “Californians recognize that moving oil can be a dangerous business,” said California Department of Fish and Wildlife Director Charlton H. Bonham. “Enhancing the programs we have in place will give Californians the confidence they need to know that any movement of oil in this state will be done in the safest manner possible.”

    The report details 12 main recommendations:

    • Increase the number of California Public Utilities Commission rail inspectors;
    • Improve emergency preparedness and response programs;
    • Request improved identifiers on tank placards for first responders;
    • Request railroads to provide real-time shipment information to emergency responders;
    • Request railroads provide more information to affected communities;
    • Develop and post interactive oil by rail map;
    • Request the federal Department of Transportation to expedite phase-out of older, riskier tank cars;
    • Accelerate implementation of new accident prevention technology;
    • Update California Public Utilities Commission incident reporting requirements;
    • Request railroads provide California with broader accident data;
    • Ensure compliance with industry voluntary agreement;
    • Ensure state agencies have adequate data.

    Several state agencies engage in prevention, planning, emergency response, and cleanup activities applicable to oil by rail, including the Office of Emergency Services (OES), the Office of State Fire Marshal (OSFM), California Environmental Protection Agency (CalEPA), and the Office of Spill Prevention and Response (OSPR). Local agencies, including the local Certified Unified Program Agencies (CUPAs), also play critical roles in emergency preparedness and response, and have expressed growing concern about increased oil by rail transport.

    In addition to administration’s budget proposal, state officials are updating California’s emergency response programs, including the CalEPA Emergency Response Management Committee revising the Hazardous Material and Oil Spill annex of the State Emergency Plan and OES reviewing and updating the six Regional Plans for Hazardous Materials Emergency Response.

    The report is the product of an intensive 6 month effort by multiple state agencies, including the California Public Utilities Commission; California Office of Emergency Services; California Environmental Protection Agency; Department of Toxic Substances Control; California Energy Commission; California Natural Resources Agency; California Office of the State Fire Marshal; Department of Oil, Gas and Geothermal Resources; and Office of Spill Prevention and Response.

    View the report: http://bit.ly/OBR-pdf
    Visit the web page: http://bit.ly/OBR-page

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