Saturday, April 19, 2008

Appeal Procedures for Route Security Finding

As I noted earlier this week (see: "Two New Railroad Hazmat Security Rules") two new rules were published in the Federal Register dealing with the shipment of selected hazardous material by railroad. The first, an interim final rule, dealt with the selection of routes for those shipments. The second is a proposed rule, Enforcement, Appeal and Hearing Procedures for Rail Routing Decisions, that establishes procedures for the Federal Railroad Administration to follow when it determines that a carrier did not select the "safest and most secure practicable route" for the shipment of selected hazardous chemicals.

Neither of these two rules directly deals with security at chemical facilities; they deal with rail movement of hazardous chemicals. Since many high-risk chemical facilities will receive the selected hazardous chemicals via rail shipment, the implementation of these rules may impact those facilities. This means that a basic understanding of these rules may be important to personnel at chemical facilities.

Review of Rail Routing Decisions

In the interim final rule discussed in an earlier blog (see: "Railroad Hazmat Route Selection Rule") the PHMSA noted that they intended to "aggressively oversee railroads' route analyses and route selection determinations and will use all available tools to enforce compliance with the rule" (page 20756). If during that oversight it is determined that the analysis was in some way deficient or that the ‘safest most secure’ route was not selected, "the Associate Administrator (FRA) will issue a written notice of review (‘Notice’) to the railroad carrier" (page 20775).

The Notice will detail all of the deficiencies noted in the route analysis and may suggest remedies to correct those problems, including the use of an alternative route. For the next 30 days the FRA will work with the carrier to resolve the issues identified. If, at the end of the 30 day consultation period, the Associate Administrator is not satisfied with the actions taken by the carrier he will (pages 20775-6):

"(1) Consult with TSA and PHMSA regarding the safety and security of the route proposed by the railroad carrier and any alternative route(s) over which the carrier is authorized to operate that are being considered by the Associate Administrator. A written summary of the recommendations from TSA and PHMSA will be prepared;

"(2) Obtain the comments of the STB regarding whether the alternative route(s) under consideration by the Associate Administrator would be commercially practicable; and

"(3) After fully considering the input of TSA, PHMSA and STB, render a decision."

Issue a Second Written Notice

If the Associate Administrator concludes that the carrier’s route analysis is inadequate and "that safety and security considerations establish a significant preference for an alternative route, and that the alternative route is commercially practicable" (page 20776) then a second written notice will be issued. Within 20 days of the receipt of that second notice, the carrier will start using the designated alternative route.

Judicial Review

At this point the carrier only has two ways to get his hazmat trains back on the original route. The first is to take further actions to reduce the safety or security risks associated with the original route; this could be expensive. The second is to seek judicial review of the Associate Administrator’s directive. This is done by filing an appeal with "an appropriate United States court of appeals as provided in 49 U.S.C. 5127" (page 20776).

Effect on Chemical Facilities

There is nothing written in this proposed rule that calls for any action by chemical facilities. The rail carrier may, however, seek support and assistance from the shipping or receiving chemical facility to justify their original assessment. They may also request assistance in mitigating or eliminating safety or security risks associated with the shipments.

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