January 21, 2016

DeFazio Pushes DOT to Prioritize Critical Oil Spill Response Plans

January 21, 2016

The Honorable Anthony Foxx
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590


Dear Secretary Foxx:

Section 7307 of the Fixing America’s Surface Transportation Act of 2015 (FAST Act) requires you to provide an update to Congress within 30 days of enactment of the FAST Act and every 90 days thereafter, until a final rule is promulgated, based on the advanced notice of proposed rulemaking (ANPRM) that was issued on August 1, 2014, entitled “Hazardous Materials: Oil Spill Response Plans for High-Hazard Flammable Trains (HM-251B)”.

The reason the FAST Act included that provision is because I am growing increasingly frustrated that the Pipeline and Hazardous Materials Safety Administration (PHMSA) has thus far failed to issue a final rule on the matter. Other Members share my concern as you can see from the Consolidated Appropriations Act, 2016 (P.L. 114-113) which requires you to finalize the rulemaking within one year of the date of enactment of the Act, or not later than December 18, 2016 (see page 1541). The estimates contained in your 30-day letter, which was submitted in compliance with the FAST Act, completely ignores that mandate.

You state that PHMSA is “working expeditiously” to publish a Notice of Proposed Rulemaking (NPRM) no later than June 2016, nearly two years after the ANPRM was published. In my view, that is more than enough time to seek the views of interested parties, resolve inter-departmental and Office of Management and Budget matters, and move forward with a final rule. An NPRM should have already been completed.

Your letter continues to inform that a final rule will not be published until June 2017, long after you have left office and a new administration that may or may not finalize this rulemaking is in place. Furthermore, even that date, according to your letter, may be adjusted as PHMSA moves forward with the rulemaking process, a clear signal that this is not a priority for the Department of Transportation (DOT). Meanwhile, crude-by-rail accidents continue to occur.

Comprehensive oil spill response plans are crucial for adequately preparing Federal, state, local and regional response teams to respond to an accident or incident involving the transportation of hazardous liquid, including crude oil, ethanol, and other petroleum-based products. They ensure that personnel are trained and available and equipment is in place to respond to a spill, and that procedures are established before a spill occurs.

I have heard from many responders in my district that little information has been shared with them on the potential consequences of a spill, and that plans for coordinating with Federal, state, local and regional response teams and the railroads should a spill occur have not been set-forth. This is especially true for areas where there is little or no road access, such as forests or waterways. 

The fact is responders are not able to determine a railroad’s worst-case discharge on their own, nor are they able to determine what specific resources are available or should be acquired, where those resources will be positioned, or what procedures are in place without significant input from PHMSA and the railroads. While the railroads are providing some information to responders, it is not nearly enough to adequately prepare them for a potential spill.

I strongly urge you to re-assess your timeline and make finalizing this rulemaking a DOT priority.



Ranking Member