Tuesday, December 2, 2008

Several Changes to Rail Hazmat Routing IFR

As I noted in a blog last Friday (see: “PHMSA Publishes Rail Routing Final Rule”), the Pipeline and Hazardous Material Safety Administration published their final rule on railroad route selection for selected hazardous material shipments. This confirmed the interim final rule issued last April (see: “Two New Railroad Hazmat Security Rules”) with some relatively minor changes.


I did a basic analysis of the provisions of the IFR in another blog (see: “Railroad Hazmat Route Selection Rule”) and there were a number of subsequent reader comments that I also discussed (on 4-19-08, 4-21-08, and 4-22-08). I also did blogs on comments submitted on the IFR (on 5-19-08 and 5-28-08).

Changes to IFR

There were four changes made to the IFR in this final rule. None of the changes rose to the level of major changes, but there will be significant differences in how this rule affects various parties.

These changes include:
The removal of the Residue exemption, A new requirement supporting coordination with State and local governments, A new, alternative date for completion of the initial route analysis, and The clarification of the requirement to coordinate with shippers and receivers.
Residue Exemption Removal

The IFR described the qualifying quantity of PIH materials as a “bulk quantity” {§ 172.820(a)(2)}. According to the preamble to this rule (page 72184) that was intended to include residues in excess of 119 gallons. A commenter noted that there was no definition provided for the term ‘bulk quantity’ in the existing hazardous materials regulation or the IFR.

PHMSA was unable to come up with a definition that met their desire for a significant quantity of liquid and/or gas PIH. They also realized that the railroad would have no practical method of determining the amount of residue in the rail car. The description of the qualifying quantity now reads a “A quantity of a material poisonous by inhalation in a single bulk packaging” {§ 172.820(a)(2)}. This now includes any railcar (including containers larger than 119 gallons in a box car or on a flat car) shipment of a PIH chemical to include a car containing any residue.

Coordination with State and Local Governments

In conducting its route analysis the IFR requires the railroad to “seek relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to the route(s) utilized”{172.820(c)(2)}. Railroads wanted a single agency in each state to coordinate the information. Local governments wanted more involvement in the process.

PHMSA addressed these issues (‘resolved’ would be much to strong a term) by adding a new paragraph requiring each railroad to appoint a single point of contact for route analysis issues under this rule. The contact information (name, title, phone number and email address) would have to be provided to State and/or Regional Fusion Centers within the area affected by that railroad’s hazmat shipments. Additionally, any State, local or tribal government that contacted the railroad with questions about its hazmat routing would be given the same contact information.

Alternative Route Analysis Completion Date

With a June 1st, 2008 effective date for the IFR, PHMSA felt that it could only require the railroads to use six months (July-December) of shipping data to conduct the initial route analysis. This was because there was no prior obligation to collect and maintain the necessary data. PHMSA realized that this information would be incomplete, especially for seasonally affected commodities like anhydrous ammonia (see page 72188). They also felt that good business practices would require the railroads to have a full years worth of data on file.

In order to get railroads to voluntarily use a more complete, annual data set, PHMSA, in this final rule {§ 172.820(f)(ii)}, is providing for an alternative (later; March 10, 2010 versus September 1, 2009) date for completing the initial route analysis, if the railroad will use a full year’s (Jan-Dec 2008) worth of data. Railroads must notify the FRA Assistant Administrator of their intention to use the alternative date by September 1st, 2009.

Coordination with Shippers and Receivers

The IFR required each railroad to develop measures, in consultation with hazmat shippers and receivers, to minimize the enroute storage of any covered material. The paragraph {§ 172.820(g)(2) concluded with the sentence: “Such measures should be implemented with mutual consent of all parties.”

The railroads argued that this requirement placed an undue burden on them concerning material under their physical control on railroad property. PHMSA agreed that the railroad had the ultimate responsibility for these measures. It removed the final sentence from the paragraph in the final rule. It kept the requirement for the railroads to consult with shippers and receivers in formulating these procedures.

Route Analysis Model Development 

PHMSA announced in the preamble (page 72190) that DOT and DHS were finalizing the development of a web-based, interactive tool to conduct the route analysis required in this final rule. The tool is being developed under a grant from FEMA. The tool is described this way in the preamble:
“This web-based, interactive tool will assist rail carries to identify route characteristics using the 27 factors and to weigh safety and security impacts, thereby providing a standardized, consistent approach to the process of selecting safe and secure rail routes for high-risk hazardous materials. In addition, the tool provides a methodology for assessment of consequences for a specific commodity released at a specific point on a rail line; assessing natural hazard risks for a specific rail asset; and for corridor analysis entailing a review of all route or asset analysis results for a given rail corridor (i.e., geographic area). We expect this analysis tool to be available in 2008.”
I have noted a number of times in previous blogs about this subject, that the route analysis required under this rule is too complex to be legitimately done as a paper exercise, especially since PHMSA refuses (probably rightfully so) to provide a weighting factor for each of the 27 different factors (Appendix A to 49 CFR § 172) required to be taken into consideration in the analysis.

This is even more important when you consider that the railroad must conduct the same analysis for each practicable alternative route under their control. Then they must use these multiple route analyses to “select the practicable route posing the least overall safety and security risk” (page 172182). Only the use of a computer model would allow for a legitimate comparison of such complex analyses.

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