Today DOT’s Pipeline and Hazardous Material Safety Administration
(PHMSA) published a finle rule in the Federal Register (80 FR
26643-26750) concerning Enhanced Tank Car Standards and Operational Controls
for High-Hazard Flammable Trains. This is the same final rule that was
announced last Friday by Secretary Fox.
This will be the first in a series of blog posts on the
details of the HHFT final rule (HM-251). Because of the crude
oil train wreck this week in North Dakota and Sen Baldwin’s letter
to Secretary Fox calling for an emergency order overriding some of the rail
routing provisions of this rule I will start off this review with that topic.
Background
One of the main concerns that first responders and
politicians have with crude oil trains is the possibility of a derailment with
fires and explosions in an urban area like we saw two years ago in Lac Montaic,
Quebec. All other things being equal, politicians and urban first responders
would prefer to see the HHFT route around major metropolitan areas. Lacking
that, first responders would like as much information about HHFT trains as
possible, including where and when they would run through their area of
operations, as well as the number, type and location of hazmat railcars in the
train.
This is not the first time that this issue has come up.
Concerns about the movement of toxic inhalation hazard (TIH) chemicals through
urban areas have provoked similar concerns. Congress responded by attempting to
get these shipments re-routed around High Threat Urban Areas (HTUA) through the
requirements of §1551
of the Implementing
Recommendations of the 9/11 Commission Act Of 2007. In April of 2008 PHMSA
added §172.820
to 49 CFR adding rail routing requirements to the safety/security plan portion
of the Hazardous Material Regulations.
In short that section required that railroads carrying
minimum quantities of security sensitive materials (TIH chemicals, radioactive
material and certain explosives) are required to conduct a rail route analysis
for covered routes and alternatives to those routes. The analysis is supposed
to look at 27 Rail
Risk Analysis Factors and then use that analysis to “select the practicable
route posing the least overall safety and security risk” {§172.820(e)}.
Adding HHFT Trains
This final rule adds §172.820(a)(4).
It adds “A high-hazard flammable train (HHFT) as defined in § 171.8 of this
subchapter” to this list of security sensitive shipments that require the
application of the route analysis requirements of §172.820. It also establishes the requirement for the
HHFT train route analysis to be completed by March 31st, 2016 using
shipping-route data for all of 2015 or the last six months of 2015 at the
discretion of the railroad{§172.820(b)(1)}.
Information Sharing
Sen. Baldwin’s concern with this provision lies in §172.820(i)(2) that
requires protecting information collected during the route analysis as
sensitive security information (SSI); restricting the information to those with
a need to know. Her concern is that railroads would use this provision to limit
the sharing of information to just those agencies specifically designated to
receive it and certainly refusing to share it with the general public.
There is more than a little justification for her concern.
When DOT issued their emergency
order on the Local
Notification of High-Volume Rail Transport of Bakken Crude Oil, railroads
tried to convince the State Emergency Response Committees that the information
on the volumes of crude oil being shipped that the EO required to be supplied
to the SERCs was sensitive security information and could not be publicly disseminated.
Some SERCs went along with that, others did not. Neither PHMSA nor DOT
supported the railroads claim of SSI classification.
Interestingly, the SSI provisions of §172.820 only apply to information developed for paragraphs
(c), (d), (e) and (f); the route analysis data. It does not apply to the
commodity data required to be developed under paragraph (b). That commodity
data would include “the geographic location of the route and the total number
of shipments by UN identification number for the materials specified in
paragraph (a) of this section” {§172.820(b)(1)}.
This commodity data is what the emergency response committee would like to see
given that they are unlikely to get advance notice of shipments as some have
requested.
The reference to information sharing requirements in Baldwin’s
letter do not actually come from this rule; they are already part of the
current §172.820.
Paragraph (g) requires railroads to provide contact information for an
individual “on routing issues involving the movement of materials covered by
this section” to State and Local fusion centers specifically for security
issues not emergency response. The same information is to be provided to “State,
local, and tribal officials in jurisdictions that may be affected by a rail
carrier’s routing decisions and who directly contact the railroad to discuss
routing decisions”.
PHMSA addressed this issue
in the preamble to this rule noting that the requirements described above as
the “current notification procedure for what have historically been known as
the most highly hazardous materials transported by rail”. They also included a lengthy discussion
of their original proposal to add a new notification requirement under §174.310 similar to that
included in the emergency
order issued last May. In the end they decided that the existing notification
requirements of §172.820
were the most appropriate way to go.
Re-routing Decisions
The route analysis data is clearly designated sensitive
security information and is thus not publicly available, nor discoverable
through the Freedom of Information Act process. That means that we have no way
of determining if the original usage of the provisions of §172.820 have had any
effect on the routing of sensitive security materials around cities.
Even if there were data available it would be difficult to
find fault with any but the most egregious examples of poor route selection for
safety and security. With 27 different factors to consider, no formula for
weighting those factors and no formal analytical process to establish comparable
levels of safety and security, one would be hard pressed to find a situation
where a legitimate (if not necessarily consistent) analysis could not be
conducted to approve any given route.
The good thing here is that the railroads already have their
internal analysis procedure in place and have probably started to collect the
data. The thing that will be different is the number of flammable trains and
the lengths of the routes involved. There will be some number of new miles not
previously analyzed so they will have to collect data about the nature of those
routes, but that will be minor as compared to their earlier requirements to
stand up the data collection and analysis systems.
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