Today the DOT’s Pipeline and Hazardous Material Safety Administration published a notice in the Federal Register (79 FR 10461-10465) announcing that it was closing the rulemaking process on its bulk loading and unloading operations rule. That rule was proposed in 2011 based upon recommendations from both the National Transportation Safety Board and the Chemical Safety Board as well as a petition from the Dangerous Goods Advisory Council.
The Proposed Rule
On March 11, 2011 PHMSA published their notice of proposed rulemaking (76 FR 13313). The rule would have specified bulk loading and unloading requirements both for carriers of hazardous materials and facilities at which those materials were loaded or unload to or from cargo tank motor vehicles (CTMV), generally speaking tankwagons.
The carrier responsibilities would have included requirements to:
• Assess the risks of loading and unloading operations and develop written operating procedures;
• Train hazmat employees in the relevant aspects of the operational procedures; and
• Annually qualify hazmat employees who perform loading and unloading operations.
The facility responsibilities would have included requirements to:
• Develop and implement a periodic maintenance schedule to prevent deterioration of equipment and conduct periodic operational tests to ensure that the equipment functions as intended; and
• Ensure that the equipment meets the performance standards in part 178 for specification CTMVs.
I discussed these requirements in more detail in a series of blog posts:
• Security Issues; and
Reassessment of Rulemaking
PHMSA notes that it received 44 comments from various organizations and individual about the provisions of the NPRM and that those comments were generally negative (as is the case with most proposed rules). Those negative comments fell into five general categories:
• Scope – Confusion about the applicability of the proposed rule;
• Risk Assessment – Concern over the possibility of duplication of efforts by facilities and carriers;
• Operating Procedures – Questioned the intent of provisions for the maintenance and testing of transfer equipment within the operating procedure requirements; and
• Training and Qualification – Overly burdensome and unnecessary.
PHMSA also considered that existing regulations, including those from OSHA (29 CFR 1910.119) and EPA’s Clean Air Act (General Duty Clause) partially addressed some of the same issues for some classes of chemicals and the PHMSA hazmat employees training rules also could be considered to apply to most bulk loading and unloading situations.
Based upon the above PHMSA conducted a reassessment of the need for this rulemaking and determined that there were additional concerns about the potential effectiveness of the proposed regulations and their enforcement. Those concerns included:
• Redundancy within the hazardous materials regulations (HMR);
• Questions about the lack of potential impact because human error was the source of most incidents;
• Need for a memorandum of understanding with OSHA and EPA about roles and enforcement responsibility in overlapping jurisdictions.
In pulling this rulemaking PHMSA is not giving up on resolving the issue of serious accidents related to bulk loading and unloading of hazardous chemicals from CTMVs. The notice reports the following continuing actions that will be taken by the agency:
• Preparation of a Bulk Loading/Unloading guidance document;
• Engaging in a rigorous outreach campaign; and
• Conducting a human factors study.
Personally, I am very disappointed in the short sighted action taken by PHMSA today. I have worked in the chemical industry for over 20 years. I have attended and closely observed hundreds of bulk loadings and unloadings in that time at multiple facilities. Facilities that had the type programs in place like those suggested in the NPRM were successful in safely loading and unloading some very dangerous chemicals. I can’t recall a single incident at such facilities that was not related to an equipment issue on the truck side of operation.
I have seen facilities that did not have the assessment and training programs in place conduct some very unsafe practices that resulted in hazardous material spills and personnel injuries. While most chemical drivers, particularly hazmat drivers, are professional and well trained some of the worst mistakes that I have seen perpetrated were made by truck drivers. And in each case those mistakes were due to lack of training and inexperience.
PHMSA’s claim that regulatory redundancy is part of the reason that this rulemaking is being withdrawn ignores the fact that accidents continue to happen with great regularity with these other regulations in place. Obviously these other regulations are lacking in effectiveness. Neither the OSHA nor the EPA regulations have any specificity in dealing with bulk loading or unloading operations as they are not transportation regulators and bulk chemical transfers of this sort are inherently transportation related activities conducted by personnel that operate under the purview of the HMR. The limitation in the proposed rule to the coverage of the rule to the operation on the vehicle side of the first fixed valve makes that clear.
And finally the claim that the regulations would be ineffective because most of the bulk transfer accidents have been related to human error is ludicrous. The only way to reduce human error is to conduct training and reinforce that training with periodic performance assessments. That was the main point of the proposed rule. Any complaint that that type of requirement was too burdensome borders on criminal negligence and should be rejected out of hand.
By this action today, PHMSA is ensuring that transportation related bulk transfer accidents and incidents will continue unabated. So much for being concerned with transportation safety; PHMSA has abdicated their responsibility.