As I mentioned in an earlier blog (see: "Two New Railroad Hazmat Security Rules") the Department of Transportation has issued two new rules (actually an interim final rule and a proposed rule) dealing with security rail shipments of hazardous materials. Both of these rules are based on a Notice of Proposed Rule Making originally issued in 2004 (docket # PHMSA-RSPA-2004-18730) and have been modified based on comments received subsequently and by provisions of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-53).
This is part of a series of rules and proposed rules on hazmat rail shipments that are finding their way into the Federal Register this year from agencies within both DOT and DHS. While these rules are not directly related to Chemical Facility Security, they will certainly have an effect on inbound and outbound shipments of certain hazardous chemicals. These effects may impact site security plans at some chemical facilities (see: "DOT Proposed Rule Touches on IST").
Hazmat Route Selection Rule
With that in mind we will look at the general provisions of the interim final rule published this week. This rule, Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments, deals with the procedures that railroads will use to select "safest and most secure practicable route" for the shipment of selected hazardous materials. The comment period on this rule ends on May 16th and it goes into effect on June 1, 2008.
The rule requires railroads to collect data on the shipment of selected hazardous materials. That data will include the number shipments made, the offerors and consignees, and the routes used to ship those chemicals. The railroads are then required to conduct safety and security assessments of those routes and potential alternative routes. That data will then be used by the railroads to select the safest routes and to develop security plans that address the vulnerabilities identified in the assessments.
Selected Hazardous Materials
The materials that fall under the provisions of this rule fall into three categories (pages 20757-8), which listed below. The rule covers all bulk shipments of these materials by rail as well as return shipments of empty containers containing ‘residues’ of the original material.
- "Division 1.1, 1.2, and 1.3 explosive materials,
- "PIH materials, and
- "Highway Route Controlled Quantity Radioactive Materials (HRCQ)."
The 9/11 Commission Act required DHS to develop a list of ‘security-sensitive materials’ for rail transportation. That list is expected to be published in the near future. Once that list is finalized, the PMHSA will review that list and determine what changes need to be made to list of materials that are covered by this rule.
Analyze for Safety and Security Risks
The railroad moving the selected hazardous material will be required to analyze each route and alternative route for safety and security risks. Appendix D to Part 172, 49 CFR, provides a list of 27 different factors that the railroad is required to consider in making this analysis. The railroad is required (page 20759) to
"… seek relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route used to transport security sensitive materials."
It is expected that State and local governments will be able to provide information about such factors as population density, environmental factors, and special venues or events along the routes. Local governments may also be able to assist "carriers in addressing any safety or security vulnerabilities identified along selected routes".
Selecting the Safest and Most Secure Practicable Route
Using the safety and security analyses the carrier will determine which practicable route is the safest and most secure. No route is expected to be without risk. The "route with the lowest overall safety and security risk should be selected and used" (page 20763). It may be that different routes are more safe or secure under varying circumstances. Those circumstances will be documented so that the appropriate route may be selected as those factors change.
The Federal Railroad Administration (FRA) "will incorporate review and inspection of route analyses and selections into its inspection programs" (page 20756). Inspectors will review records of the route analysis and may make suggestions to improve that process. The FRA, ifit decides that an inappropriate route was selected, may require the carrier to change routes.
In recent years there has been a continuing controversy over whether or not states or local governments can restrict the movement of hazardous materials via railroads within their boundaries. This interim final rule specifically states that it "preempt(s) any non-Federal designation or restriction of routes for rail shipments of hazardous materials" (page 20767). It bases this preemption on sections 5101 and 20106 of 49 U.S.C.
Section 172.822 of 49 CFR has been revised to read:
"A law, order, or other directive of a state, political subdivision of a state, or an Indian tribe that designates, limits, or prohibits the use of a rail line (other than a rail line owned by a state, political subdivision of a state, or an Indian tribe) for the transportation of hazardous materials, including, but not limited to, the materials specified in Sec. 172.820(a), is preempted. 49 U.S.C. 5125, 20106."
Effect on Chemical Facilities
Carriers are required to minimize the time that hazmat shipments are held in shipment. To this end they are required, as part of their security plan, to establish a "procedure for consulting with offerors and consignees to minimize the time a material is stored incidental to movement" (page 20764). This may require an increase in the time that railcars are held at chemical facilities, either at the origination or termination of shipment. This may also create a new class of chemical facilities, facilities designed for the temporary, secure storage of hazmat railcars during shipment.
The interim final rule requires carriers "to increase the scope of the current safety inspection to include a security inspection of all rail cars carrying placarded loads of hazardous materials" (page 20766). All placarded railcars will be inspected from ‘ground level’ for signs of tampering or presence of suspicious items or "other signs that the security of the car may have been compromised, including the presence of an IED". The carrier may not move or accept for movement a railcar that fails such an inspection. This will certainly result in periodic delays in moving railcars off site.
Once again, this rule, the second in a series of rules concerning security and safety of shipping hazmat chemicals by rail, is not directly linked to chemical facility security. That is why I have not analyzed it in greater detail. But we will watch this and subsequent rules to try to discover their potential effects on security issues at high-risk chemical facilities.