HomeMy WebLinkAboutMINUTES - 07082014 - D.5RECOMMENDATION(S):
CONSIDER adopting a position on AB 380 (Dickinson), as amended 6/16/14, Spill Response For Railroads, a bill
that requires a rail carrier to report specified information regarding the transportation of hazardous materials to the
Office of Emergency Services, to maintain a response management communications center, and to provide the office
with a hazardous materials emergency response plan, as recommended by the Hazardous Materials Program Director.
FISCAL IMPACT:
Unknown.
BACKGROUND:
2013 CA A 380: Bill Analysis - 06/02/2014 - Senate Environmental Quality Committee, Hearing Date 06/04/2014
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 380
AUTHOR: Dickinson
AMENDED: May 28, 2014
FISCAL:
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 07/08/2014 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: L. DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: July 8, 2014
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
D. 5
To:Board of Supervisors
From:David Twa, County Administrator
Date:July 8, 2014
Contra
Costa
County
Subject:AB 380 (Dickinson), as amended 6/16/14, Spill Response For Railroads
BACKGROUND: (CONT'D)
Yes
HEARING DATE: June 4, 2014
URGENCY: No
CONSULTANT: Karen Morrison
SUBJECT: HAZARDOUS MATERIALS: EMERGENCY RESPONSE
SUMMARY:
Existing federal law:
1) Requires that laws related to railroad safety shall be nationally uniform "to the extent practicable" and allows a
state to adopt an additional or more stringent law under certain conditions when not preempted by the federal act
(49 U.S.C. Section 20101 et seq.).
2) Requires each state to have a State Emergency Response Commission (SERC) to coordinate and supervise
federal programs related to hazardous material emergencies and ensure public availability of appropriate chemical
information (42 U.S.C. Section ;11001-11050).
3) Regulates hazardous materials transportation and requires inspection of shipments by rail under regulations
developed by the federal Pipeline and Hazardous Materials Safety Administration (PHMSA, 49 U.S.C. Section
5101 et seq.).
4) Defines certain information related to transportation security in the form of rail shipments and security as
Sensitive Security Information (SSI) and places limits on the dissemination of that information (49 C.F.R. Section
1520).
Existing California law:
1) Requires the Office of Emergency Services (OES) to assist local governments in their emergency preparedness,
response, recovery, and hazard mitigation efforts.
2) Requires that all rail operators provide a risk assessment to the California Public Utilities Commission (CPUC),
the Director of Homeland Security, and California Emergency Management Agency (CEMA) that describes the
locations, types, and frequency of hazardous cargo movement through rail facilities, and training and emergency
response procedures (PUC Section 7665 et seq.).
This bill:
1) Requires railroads to provide to OES, on a quarterly basis, data for the twenty-five largest hazardous material
commodities and crude oil or oil cargo transported through California. This data includes the type and amount of
material and the carload type as broken down by county and track route. OES is required to disseminate relevant
information to certified unified program agencies (CUPAs) that may be impacted by a hazardous spill.
2) Requires railroads to maintain an emergency response communication center that can provide information on
train composure in the event of a hazardous material spill.
3) Requires railroads to provide OES a summary of the carrier's Hazardous Materials Emergency Response Plan
(HMERP). OES is required to provide a summary of the HMERP to impacted CUPAs.
4) Stipulates that all information provided to OES and disseminated to the CUPAs is SSI and is exempt from the
Public Records Act, unless as determined necessary by OES.
COMMENTS:
1) Purpose of Bill. According to the author, "The shipment of crude oil by rail in tank cars into California is
growing exponentially. [...] "A series of derailments around the country have raised the profile of increased crude
by rail shipments among local, state, and federal officials. Large crude oil spills have led to devastating and
deadly fires and explosions. According to data from the Pipeline and Hazardous Materials and Safety
Administration, the amount of crude oil spilled from rail cars in 2013 exceeded the cumulative spill in the
previous 40 years. [...] "State and local emergency response agencies face new challenges when dealing with this
amount of hyper-flammable crude. The risk to life and property in the event of a crude by rail accident has become
enormous. It is essential that emergency response agencies have critical information about crude cargoes that may
be unavailable to them now, in order to be best able to respond to crude by rail accidents, should they occur." "AB
380 will ensure state and local emergency response agencies are best prepared to respond to a rail mishap when
rail cargo consists of hazardous materials including crude oil."
2) Rail transportation in California. California's freight rail system has become increasingly important for
international, interstate, and intrastate trade. According to the Association of American Railroads (AAR) in 2011,
freight trains operated on 6,863 miles of rail in California. Class I railroads - the designation for the major rail
freight carriers - are represented in California by the Burlington Northern Santa Fe Railway (BNSF) and the Union
Pacific Railroad (UP) and account for 5,432 miles of rail in the state. Rail lines frequently pass through
residential areas and regions of high population density. This is particularly true in southern California, where
high population density overlaps with heavy rail traffic. In addition, most towns in California have a freight
railroad that runs through or near it.
3) Historic rail accidents in California and legislative response. Two rail accidents in Dunsmuir and Seacliff,
California in July 1991 changed the landscape of hazardous response following a train derailment in California.
Six bills were introduced that year in the California Legislature to improve rail safety and emergency response,
and four were signed into law. However, one program established by this law has since sunsetted, and several
other provisions were struck following legal challenges. The CPUC was required to annually report to the
Legislature on the type, quantities, and locations of hazardous materials transported by railroads; however, this
requirement was later removed from the law following a challenge from the railroads. The CPUC continues to
monitor hazardous materials that enter California by rail, and CPUC rail safety inspectors investigate accidents
involving the actual or threatened release of hazardous materials as reported by CEMA. The CPUC also
established General Order 161 in 1991, which requires railroads to notify the appropriate emergency response
agency following any release or threatened release of a hazardous material within 60 days. Railroads that
transport hazardous materials are also required to have an emergency preparedness plan covering notification
procedures, mitigation of a release, and training procedures for railroad personnel. The Railroad Accident
Prevention and Immediate Deployment (RAPID) Force was established (SB 48, Chapter 766, Statutes of 1991) in
order to provide immediate onsite response capability in the event of a hazardous spill by rail. Funds were also
established in order to pay for hazardous spill response, training, and education. This program ended following a
sunset of the law on December 31, 1995.
4) Federal preemption. Most aspects of rail transportation and commerce are regulated by the federal government.
State governments are limited in their power to regulate rail traffic, and can enact additional or more stringent
laws that are necessary to eliminate an essentially local hazard, are not incompatible with a federal law, and do not
unreasonably burden interstate commerce. Bills relating to the Public Utilities Commission, which oversees rail
transportation in California, are under the jurisdiction of the Senate Energy, Utilities, and Communications
Committee. Should this bill be referred to that committee, they may wish to comment further on any federal
preemption issues.
5) Hazardous waste manifests and labeling. While the United States Department of Transportation (DOT)
requires that shippers and carriers of hazardous materials identify transported goods as such, there is no
requirement to make the information accessible to the public. Hazardous materials shipped by vessel and rail are
manifested, but the information is not collected in any comprehensive way. Though railroads keep records of
hazardous materials they have shipped, this information is considered proprietary. As a result, it is difficult to
track precisely how much hazardous material, including crude oil, is being transported at a given time or for a
specific year.
6) Crude oil transportation by rail. Crude oil by rail is growing quickly as pipelines become saturated and do not
connect new oil boom regions (such as the Bakken in North Dakota and the Tar Sands in Canada) to major
refining locations (such as California). According to the California Energy Commission, in 2009, 45,491 barrels
of crude oil were imported into California by rail. By 2013, the amount of crude oil imported by rail increased to
6,169,264 barrels of crude oil. At the March 19, 2014 oversight hearing on Emergency Preparedness for Rail
Accidents held by the Senate Committees on Environmental Quality and Natural Resources and Water, OES
estimated that in the future, 25% of California's oil could enter the state by rail. In contrast, less than 1% of all oil
imports in 2012 entered California by rail.
7) Crude oil rail accidents. Train accidents involving large crude oil spills resulting in large fires and explosions
have made headlines in the past year. According to data from PHMSA, the amount of crude oil spilled from rail
cars in 2013 exceeded that spilled in the preceding four decades: in 2013, 1.15 million gallons of crude oil were
spilled, compared with about 800,000 gallons spilled from rail cars between 1975 and 2012. One of the most
serious of these recent accidents was the Lac-Megantic derailment that occurred in the town of Lac-Megantic in
Canada on July 6, 2013. In this accident, a 74-car freight train carrying crude oil from the Bakken formation
derailed in the downtown area, killing 47 people and destroying more than 30 buildings when multiple tank cars
exploded and burned. In addition, the Chaudiere River was contaminated by 26,000 gallons of crude oil. Since the
Lac-Megantic derailment, six other train derailments in Alabama, North Dakota, New Brunswick, Pennsylvania,
Virginia, and Colorado have resulted in the release of crude oil. In particular, the derailment in downtown
Lynchburg, Virginia on April 30, 2014 caused a large fire and spilled up to 30,000 gallons of Bakken crude oil
into the James River.
8) Hazardous rail accidents. In addition to the highly publicized derailments involving crude oil, numerous other
derailments have led to the release of other hazardous materials into the environment. Since 2009, there have been
six rail spills involving ethanol, a highly flammable material. In particular, derailment on February 21, 2010 in
the Tehachapi Pass of California caused the rupture of an ethanol-containing car, resulting in a fire. On May 28,
2013, a train carrying hazardous materials in Baltimore County derailed and caused an explosion. The materials
included terephthalic acid and flourocyclic acid. On August 4, 2013, a train carrying a variety of hazardous
materials derailed near Latwell, Louisiana. Following the derailment, two railcars were found to be leaking
sodium hydroxide, a caustic chemical that can cause injury through touch or inhalation. This spill resulted in the
evacuation of around 100 homes.
9) Railroad response and emergency training. In response to the various rail accidents in the last year, the AAR
has met with DOT to improve track inspection, safety, and training. In particular, railroads "will commit [...] to
develop and provide a hazardous material transportation curriculum applicable to petroleum crude oil transport for
emergency responders and to fund a portion of the cost of this training through the end of 2014." In California,
BNSF has invited first responders to attend a three-day training at the Security and Emergency Response Training
Center in Colorado at no cost to the trainees.
10) California response to crude by rail. Since the Lac-Megantic derailment last year, California has had two
committee hearings on crude by rail: Safe Rail Transport of Crude Oil, held by the Senate Energy, Utilities, and
Communications Committee on February 24, 2014, and Emergency Response to Rail Accidents by the Senate
Environmental Quality and Natural Resources and Water Committees on March 19, 2014. In addition, the Brown
administration has proposed a budget trailer bill to extend OSPR responsibility from marine oil spills to any inland
oil spills that threaten state waters. The bill would pay for the response through a fee imposed on all refineries in
California, including those that receive crude oil by rail.
11) Federal response to crude oil rail accidents. In addition to Federal regulations and orders concerning labeling,
flammability, and transport, DOT has also started to address emergency response and notification. On May 7,
2014, DOT released an Emergency Order requiring all railroads that have trains carrying 1,000,000 gallons
(roughly 33 cars) or more of Bakken crude oil to notify the SERC of each affected state of the expected train
routes, the number of trains, and the type of oil. The railroads are also required to provide all applicable
emergency response information.
12) Other hazardous spills. The DOT Emergency Order only identifies emergency preparedness and response to
oil spills. However, California's rail accidents have largely been associated with non-oil spills. The Dunsmuir
metam sodium spill in 1991 killed over one million fish and sickened hundreds of residents and cleanup workers;
the Seacliff spill of aqueous hydrazine resulted in the evacuation of nearby residents for five days. Although an
emergency response plan to accidents from oil is important, it is equally critical to consider the emergency
response to a non-oil hazardous materials spill.
13) Recommended amendments.
a) Dissemination of information. The bill requires OES to disseminate "relevant" information to the CUPAs
regarding the movement of hazardous materials. It is unclear what would be considered "relevant" information. An
amendment is needed to specify what is meant by "relevant."
b) Additional information to OES. The bill requires rail carriers to provide additional information to OES, as
necessary, to assist a CUPA with its emergency response. It is unclear what this provision would entail. An
amendment is needed to require railroads to provide additional information to OES, related to the specified
commodity flow data, to assist a CUPA with its emergency response planning.
14) Policy questions: Information to OES. The bill requires each rail carrier to provide OES with a summary of
their HMERP. Is there a reason that the entirety of the plan should not be provided? Would there be a benefit for
providing the entire plan? Or is the summary sufficient for the emergency response planning process?
15) Related bills. AB 151 (Chapter 763, Statutes of 1991) enacted a comprehensive system for identifying railroad
sites that were local safety hazards through the Safe Rail Transportation Act of 1991. SB 48 (Chapter 766,
Statutes of 1991) established a procedure for railroad safety and emergency planning and response, and increased
fines for oil and chemical spills. SB 1319 (Pavley) of 2014 would use a fee to pay for OSPR response to inland oil
spills. It would also recommend for information on the shipping of crude oil by rail, truck, boat, or pipeline to be
provided to affected communities. This bill is currently in the Assembly awaiting referral. AB 2677 (Rodriguez)
of 2014 would have reinstated RAPID by requiring a comprehensive and coordinated oil spill contingency plan
for crude oil by rail. This bill failed in Assembly Natural Resources Committee.
16) Double Referral to Rules. If this measure is approved by the Senate Environmental Quality Committee, the do
pass motion must include the action to re-refer the bill to the Senate Rules Committee.
SOURCE: Author
SUPPORT: None
OPPOSITION: None
CLERK'S ADDENDUM
Written correspondence received from: Peter Dragovich, Martinez Environment Group (MEG); George B.
Smith, Chairperson, Contra Costa County Hazardous Materials Commission; Mark A. Peterson, District
Attorney (attached).
ATTACHMENTS
AB 380 Bill Text
AMENDED IN SENATE JUNE 16, 2014
AMENDED IN SENATE JUNE 9, 2014
AMENDED IN SENATE MAY 28, 2014
AMENDED IN SENATE MAY 6, 2014
AMENDED IN ASSEMBLY MAY 24, 2013
california legislature—2013–14 regular session
ASSEMBLY BILL No. 380
Introduced by Assembly Member Dickinson
February 14, 2013
An act to add Article 5 (commencing with Section 25547) to Chapter
6.95 of Division 20 of the Health and Safety Code, relating to hazardous
materials.
legislative counsel’s digest
AB 380, as amended, Dickinson. Spill response for railroads.
Existing law requires the Office of Emergency Services to implement
regulations establishing minimum standards for business plans and area
plans relating to the handling and release or threatened release of
hazardous materials. Existing law requires the establishment of a
statewide environmental reporting system for these plans.
This bill would require a rail carrier, as defined, to report specified
information regarding the transportation of hazardous materials,
beginning no later than January 31, 2015, to the office on a quarterly
basis. The bill would require each rail carrier to maintain a response
management communications center, as specified. The bill would require
the office to disseminate information necessary for developing
94
emergency response plans from the quarterly reports it receives pursuant
to this act to each unified program agency, as defined, when the office
determines a unified program agency area of responsibility may be
impacted by a hazardous material or oil cargo spill. The bill would
require each rail carrier to provide the office with a summary of the rail
carrier’s hazardous materials emergency response plan, as specified.
The bill would require the office to provide a copy of each summary
report of a rail carrier’s hazardous materials emergency response plan
to each unified program agency when the office determines a unified
program agency area of responsibility may be impacted by a rail carrier
spill of hazardous material or oil cargo and that unified program agency
has been identified by the rail carrier, in consultation with the office,
as able to receive security sensitive information, as specified, on a
need-to-know basis. The bill would prohibit a recipient of the reports
and hazardous materials emergency response plan from divulging or
making known that information to unauthorized recipients, as specified.
The bill would exempt deem the reports and hazardous materials
emergency response plan from the California Public Records Act to be
proprietary information and would limit the dissemination of that
information to those government personnel with emergency response,
planning, or security-related responsibilities on a need-to-know basis,
as provided for pursuant to federal law, except as specified.
Existing constitutional provisions require that a statute that limits the
right of access to the meetings of public bodies or the writings of public
officials and agencies be adopted with findings demonstrating the
interest protected by the limitation and the need for protecting that
interest.
This bill would make legislative findings to that effect.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Article 5 (commencing with Section 25547) is
line 2 added to Chapter 6.95 of Division 20 of the Health and Safety
line 3 Code, to read:
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line 1 Article 5. Spill Prevention and Response for Railroads
line 2
line 3 25547. For purposes of this article, the following terms have
line 4 the following meanings:
line 5 (a) “Hazardous material” means a substance or material that the
line 6 United States Secretary of Transportation has determined to be
line 7 capable of posing an unreasonable risk to the health, safety, and
line 8 property of residents when transported in commerce and has been
line 9 designated as hazardous pursuant to Section 5103 of Title 49 of
line 10 the United States Code. Hazardous material includes hazardous
line 11 substances, as defined in Section 25501, hazardous wastes, marine
line 12 pollutants, elevated temperature materials, materials designated
line 13 as hazardous in Section 172.101 of Title 40 of the Code of Federal
line 14 Regulations, and materials that meet the defining criteria for hazard
line 15 classes and divisions in Part 173 of Title 49 of the Code of Federal
line 16 Regulations.
line 17 (b) “Office” means the Office of Emergency Services.
line 18 (c) “Oil” has the same meaning as in Section 8670.3 of the
line 19 Government Code.
line 20 (d) “Rail carrier” means a person providing common carrier
line 21 railroad transportation for compensation, but does not include
line 22 street, suburban, or interurban electric railways not operated as
line 23 part of the general system of rail transportation.
line 24 25547.2. (a) No later than January 31, 2015, and every three
line 25 months thereafter, a rail carrier shall submit to the office
line 26 commodity flow data for the prior three months broken down by
line 27 county and track route relevant to the 25 largest hazardous material
line 28 commodities transported through the state, including tank cars
line 29 loaded with oil cargo. The commodity flow data shall conform to
line 30 all of the following:
line 31 (1) Be in accordance with Subpart G of Part 172 of Title 49 of
line 32 the Code of Federal Regulations and in Standard Transportation
line 33 Commodity Code numeric sequence.
line 34 (2) Include a description of the hazardous material or oil cargo
line 35 and commodity name organized by number of carload type,
line 36 including tank cars and gondola cars, intermodal loads, including
line 37 trailers, containers and tank containers, and total loads transported
line 38 within a county over the prior three months.
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AB 380— 3 —
line 1 (3) Be encrypted and stamped as security sensitive information
line 2 material, as identified pursuant to Section 15.5 of Part 15 of Title
line 3 49 of the Code of Federal Regulations.
line 4 (b) The office shall disseminate information necessary for
line 5 developing emergency response plans from the quarterly reports
line 6 prepared pursuant to this section in whole or in summary form to
line 7 a unified program agency, as defined in Section 25501, when the
line 8 office determines a unified program agency area of responsibility
line 9 may be impacted by a hazardous material or oil cargo spill. Rail
line 10 carriers shall provide additional information to the office related
line 11 to the specific commodity flow data, data to assist a unified
line 12 program agency with its emergency response planning.
line 13 25547.4. Each rail carrier shall maintain a response
line 14 management communications center, which shall provide real-time
line 15 information to an authorized public safety answering point or 911
line 16 emergency response center about the train consist involved in a
line 17 hazardous material or oil cargo spill or other critical incident,
line 18 including, but not limited to, both of the following:
line 19 (a) Hazardous material movement shipping papers, including
line 20 a way bill or total trace, detailing the hazardous material or oil
line 21 cargo.
line 22 (b) Information that can assist the primary local public safety
line 23 agency in containing and safely removing a hazardous material
line 24 spill.
line 25 25547.6. (a) Each rail carrier shall provide the office with a
line 26 summary of the rail carrier’s hazardous materials emergency
line 27 response plan. The hazardous materials emergency response plan
line 28 shall not be posted on a public Internet Web site or be subject to
line 29 public agency or public review and approval processes.
line 30 (b) The office shall provide a copy of each summary report of
line 31 a rail carrier’s hazardous materials emergency response plan to
line 32 each unified program agency, as defined in Section 25501, when
line 33 the office determines a unified program agency area of
line 34 responsibility may be impacted by a rail carrier spill of hazardous
line 35 material or oil cargo and that unified program agency has been
line 36 identified by the rail carrier, in consultation with the office, as able
line 37 to receive security sensitive information, as identified pursuant to
line 38 Section 15.5 of Part 15 of Title 49 of the Code of Federal
line 39 Regulations, on a need-to-know basis.
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— 4 —AB 380
line 1 25547.8. (a) A recipient of the reports and plans provided
line 2 pursuant to Sections 25547.2 and 25547.6 shall not divulge or
line 3 make known that information to unauthorized recipients, including,
line 4 but not limited to, individuals or organizations not legally
line 5 authorized to engage in emergency planning and response
line 6 activities.
line 7 (b) The reports and plans provided pursuant to Sections 25547.2
line 8 and 25547.6 shall be exempt from the California Public Records
line 9 Act (Chapter 3.5 (commencing with Section 6250) of Division 7
line 10 of Title 1 of the Government Code), except that the deemed to be
line 11 proprietary information and shall be disseminated only to those
line 12 government personnel with emergency response, planning, or
line 13 security-related responsibilities on a need-to-know basis, as
line 14 provided for pursuant to federal law, including, but not limited to,
line 15 Part 15 (commencing with Section 15.1), Part 1520 (commencing
line 16 with Section 1520.1), and Part 172 (commencing with Section
line 17 172.1) of Title 49 of the Code of Federal Regulations and Section
line 18 11904 of Title 49 of the United States Code. However, the office
line 19 may authorize disclosure if, in the discretion of the office,
line 20 disclosure relevant to a particular shipment is necessary to provide
line 21 for its safe transport through the state and is necessary to assist
line 22 with emergency response planning.
line 23 SEC. 2. The Legislature finds and declares that Section 1 of
line 24 this act, which adds Section 25547.8 to the Health and Safety Code,
line 25 imposes a limitation on the public’s right of access to the meetings
line 26 of public bodies or the writings of public officials and agencies
line 27 within the meaning of Section 3 of Article I of the California
line 28 Constitution. Pursuant to that constitutional provision, the
line 29 Legislature makes the following findings to demonstrate the interest
line 30 protected by this limitation and the need for protecting that interest:
line 31 In order to provide for the safe transport of hazardous materials
line 32 through the state and to avoid creating a transportation security
line 33 risk, it is in the state’s interest to limit public access to this
line 34 information.
O
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AB 380— 5 —