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> **OKLAHOMA HAZARDOUS MATERIALS**
>
> **EMERGENCY RESPONSE COMMISSION**

Comments to Docket No. PHMSA-2007-27181 (Notice No. 07-10)

Information Collection Activity Notice of Rulemaking

Dear PHMSA;

As Chair of the Oklahoma Hazardous Materials Emergency Response
Commission, (OHMERC), I want to thank you once again for the opportunity
to comment in opposition to a proposed rule which will increase the
reporting burden for first responder volunteers in Oklahoma. Oklahoma
has commented on two other occasions in opposition to the proposed
addition of non-essential information collection and the state remains
opposed to this activity.

The OHMERC is composed of representatives from the Oklahoma Department
of Environmental Quality, the Oklahoma Emergency Management Agency, the
Oklahoma Department of Public Safety, the Oklahoma State Fire Marshall,
the Oklahoma Office of Homeland Security, local emergency responders and
the regulated community. The Commission works to assist Oklahomans in
preparation for possible emergencies and disasters involving hazardous
materials, whether they are accidental releases or result from terrorist
acts. The Commission oversees the distribution of HMEP grants to Local
Emergency Planning Committees (LEPC) specifically for planning for
hazardous materials incidents and for training of local responders. The
majority of local fire departments in Oklahoma are volunteer
departments, the only hazardous materials training available to them is
the training provided by HMEP funding. The rural, volunteer fire
departments are expected to respond to transportation incidents
throughout the state. Additionally, HMEP grants to LEPCs for planning
are the major source of funding for emergency planning in Oklahoma. Only
active LEPCs which demonstrate compliance with the Emergency Planning
and Community Right-to-Know Act are eligible to receive these small
\$2,000 grants.

Local emergency responders and planning committees are almost entirely
dependant on HMEP funding distributed through the state.  The burdens
proposed by the current notice will fall on not just state agencies. 
Rather, it will fall primarily on local organizations that are users of
the funding.  These burdens are not trivial.  All LEPCs and most of our
rural fire departments are volunteer groups. 

As previously noted, the OHMERC believes this rule to be unnecessary
because HMEP grantees are already required to provide an accounting of
funding to PHMSA. For example, currently Oklahoma receives \$188,028.00
from the HMEP grant, but we are required to provide a 20% match making
the grant total \$235,036.00. The 20% match is provided with in-kind
man-hours from OSU training and LEPC assistance provided in-person.
Currently \$92,000 is provided to OSU Fire Training for local hazmat
classes and ICS classes. This year, 21 LEPCs have been granted \$2,000
each for a total of \$42,000. In order to get the funding, LEPCs must
update their emergency plan, exercise the plan, maintain a 24/7
telephone number for spill reporting, conduct community outreach, have
regular meetings, have a procedure to provide Tier II information on
request, and track hazmat incidents. Reports are required semi-annually
from LEPCs and money is granted semi-annually after verification of
activities. Administratively, \$53,000.00 goes to one FTE at OEM who is
responsible for the grant and the state-wide emergency operations plan.
Additionally, \$1028.00 is set aside for travel to attend training. The
OHMERC quarterly receives list of all hazmat or ICS classes conducted
using HMEP grant money along with the number of students in each class.
The OHMERC is also given an update on the progress of each grant funded
LEPC is making in meeting accountabilities. In summary, the money is
used effectively with full accountability. DOT already has a break down
of where the grant money goes. The following is the information already
provided to DOT:

  ---------------- ---------- ----------- ------- ------- -----------------------------------
  **SECTION B -                                           
  BUDGET                                                  
  CATEGORIES**                                            

  6\. Object Class GRANT                                  Total (5)
  Categories       PROGRAM,                               
                   FUNCTION                               
                   OR                                     
                   ACTIVITY                               

                   \(1\)      \(2\)       \(3\)   \(4\)   
                   Planning   Training                    

  a\. Personnel    \$17,665   \$36,981                    \$54,646

  b\. Fringe       \$0        \$0                         \$0
  Benefits                                                

  c\. Travel       \$1,329    \$2,784                     \$4,113

  d\. Equipment    \$0        \$0                         \$0

  e\. Supplies     \$0        \$0                         \$0

  f\. Contractual  \$0        \$0                         \$0

  g\. Construction N/A        N/A                         N/A

  h\. Other        \$56,983   \$119,294                   \$176,277
  (Passthrough)                                           

  I. Total Direct  \$75,977   \$159,059                   \$235,036
  Charges (sum                                            
  6a-6h)                                                  

  j\. Indirect     \$0        \$0                         \$0
  Charges                                                 

  K. TOTALS (sum   \$75,977   \$159,059                   \$235,036
  of 6i and 6j)                                           
  ---------------- ---------- ----------- ------- ------- -----------------------------------

All HMEP grantees provide a similar accounting of expenditures of HMEP
funds. Therefore further information collection is unnecessary and
burdensome.

Further, PHMSA has failed to provide a good rational for the collection
of this additional information. We do not believe that DOT/PHMSA should
impose the burden of information collection without a clear plan and
purpose to use the information in a fashion that comports with statute
and regulation.  Until and unless DOT/PHMSA is clear in its plans for
the use of the information it appears that the proposed collection
activity is simply an increased burden without a purpose.

The proposed rule includes three sections of additional reporting
burden. Each section has basic flaws beyond the general flaws in
rational already expressed. The first section would require grantees to
research and report extensively on possible fees imposed on the
hazardous materials transportation industry by some other agencies for
some other purpose. None of the agencies represented on the OHMERC
imposes fees on the hazardous materials transportation industry. No
other fees in the state of Oklahoma are used for training for response
to hazardous materials incidents or for planning for such incidents. It
is unreasonable to suggest the OHMERC or member agency embark on a
fishing expedition in the state to see if the industry is being charged
a fee for some agency for some purpose. If PHMSA feels this information
is important, DOT has the means to gather that information. In all
likelihood, if such a fee is charged, it will be charged by a state
Department of Transportation. Clearly US DOT has the contacts in place
to gather that information. If US DOT does not have the ability to query
state transportation departments, the industry must surely be aware of
those entities that impose fees on hazardous materials transportation
and could easily provide that information to PHMSA. In short, it is
unreasonable to require grantees to provide information about fees or
programs which they do not administer.

The second section of additional information involves planning grants.
The information in the initial question about how much money is provided
to LEPCs for planning is easily obtainable and in fact, US DOT already
has that information so the question is basically redundant. Questions
concerning emergency plans reveal a lack of understanding by PHMSA
concerning the function of LEPCs. LEPCs were required to complete local
emergency plans in 1987 and are required by law to update them annually.
They are also required to exercise their plan annually. Emergency
preparedness is a continuum of activities including updating the plan,
training and exercising. It is probably almost impossible to separate
the exact dollar amount spent on each activity since each one is part of
a continuum of activity. It is certainly reasonable to require that
LEPCs which receive HMEP grant funding comply with the requirements of
EPCRA as Oklahoma currently does. If an LEPC is in compliance, then they
are engaging in all the activities of the preparedness continuum. To
require volunteers, because all LEPC members are in fact volunteers, to
spend time answering unnecessary questions and trying to tease out
exactly how much of their total grant was spent in activities which
overlap is unreasonable. The dedicated volunteers who serve on LEPCs
already give up valuable time to actually do the work of planning,
training and exercising in addition to meeting, providing outreach,
collecting information and tracking hazardous materials incidents.
Please respect their service by understanding that no one has time for
paperwork which will not make communities safer. Additionally, questions
on assessment and commodity flow studies once again reflect PHMSA's lack
of understanding of local capabilities and costs. Most volunteer firemen
would be hard pressed to complete assessments given their other
responsibilities. While commodity flow studies are extremely valuable,
they are also extremely expensive to conduct properly so that usable
information results. In fact, in Oklahoma we have not been able to
conduct a statewide commodity flow study because funds are not
available. The strict percentage allotted for planning under the HMEP
grant system makes it almost impossible to use HMEP funds for flow
studies due to the expense of such studies. Flexibility in use of HMEP
funds between training and planning might allow such studies but that
does not exist now.

The final series of questions involves training. Again, the questions
reveal the lack of understanding by PHMSA of the training requirements
already in place on first responders. The folks who respond to hazardous
materials accidents must have certain levels of training under OSHA
regulations. There are also requirement under NFPA. In addition, there
are now NIMS/ICS training requirements from DHS. Local volunteers do not
have the luxury to assess what training they might need, they are
strapped to get the required training. PHMSA clearly does not understand
the turn-over associated with volunteer fire departments. Every year,
new volunteers must start over with training requirements. Every year,
long time members of a volunteer force must take refresher courses and
the additional courses that DHS has been requiring every year since it
came into existence. Once again, questions about how much of the
training budget went for each phase of training such as monitoring,
evaluating, critiquing, and management activities will be almost
impossible to calculate and the purpose of that level of micromanagement
has not been stated.

The OHMERC believes PHMSA has greatly underestimated the reporting
burden of this proposed rule. Although there are only three numbered
questions in the rule pertaining to planning, if one looks closely there
are actually 31 questions embedded in these three. Similarly, there are
17 questions on use of grant funds for training embedded within three
questions. In the section on possible state fees, while there are only 2
numbered questions, there exists the possibility of actually 9 total
questions to answer. So, although on the surface, it appears as if
grantees are only gathering information on 8 questions, actually 59
questions require answers under this rule. Just that number alone
demonstrates the unnecessary burden of this rule. In addition, based on
PHMSA's estimates of number of grantees and total hours of burden, the
State of Oklahoma is expected to spend 80 hours complying with this
rule. Two week, yes two weeks, spent answering questions for which no
purpose has been expressed. But it is really worse than that. Most of
the information has to be collected by LEPCs. Assuming that they spend
half the time estimated by PHMSA for grantees on information collection,
that means volunteers will spend 40 hours, a week, trying to gather this
information. That is an unreasonable burden to place on volunteers.
Considering that 21 LEPCs receive HMEP funds in Oklahoma, that is a
total of 840 additional hours that PHMSA failed to consider. The
reporting burden for Oklahoma would not be 80 hours as estimated by
PHMSA but actually 920 hours. That folks is 23 weeks. Half a year spend
on paperwork. That would probably be funny if it were not time taken
from actually protecting Oklahoma citizens.

In summary, this rule should not go forward because it is not necessary
for the proper performance of the Department and PHMSA has failed to
articulate any utility for the information. Additionally, PHMSA has
grossly underestimated the burden this rule would impose upon grantees,
LEPCS and volunteers around the country. Finally, the information, if
collected, will be flawed because PHMSA fails to understand the
preparedness continuum or the present requirements under law for LEPCs
and first responders and thus does not ask questions which can be
answered accurately.

PHMSA has failed to demonstrate a need to collect this additional
information. PHMSA failed to respond to concerns from states and LEPCS
about the burden imposed by this information collection expressed
previously.

On behalf of the OHMERC and LEPCS in Oklahoma, I would like to close
with a reminder that this burden will be placed on folks who already
give freely of their time to help keep their families and neighbors
safe. Every county in Oklahoma has hazardous materials transported on
its roads and highways. Every citizen in Oklahoma is vulnerable to harm
if accidents involving these materials are not responded to quickly and
efficiently. Such response cannot occur without a preparedness continuum
of planning, training and exercising. Men and women in Oklahoma are
willing to give up valuable time with their families and friends to
participate in this continuum because they know it is important work.
Will they stop volunteering just because someone in Washington, DC who
doesn't understand the process suddenly gives them a week's worth of
paperwork to fill out? I don't know that answer to that question. I do
know the health and safety of Oklahomans is too valuable take the risk
that the increased burden of this rule will discourage the volunteer
efforts of these local heroes. Please, respect the time and effort of
volunteers. Please, acknowledge the risk transportation of hazardous
materials imposes on innocent bystanders everyday. Please, honor the
efforts of folks willing to stand in the gap. Please, do not impose
unnecessary paperwork with no practical utility on people with real
lives. Please, withdraw this proposed information collection rule.

Sincerely,

Montressa Jo Elder

Chair, Oklahoma Hazardous Materials Emergency Response Commission