Friday, May 8, 2015

PHMSA Final Rule on HHFT – Route Selection

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.


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.

No comments:

/* Use this with templates/template-twocol.html */