Tuesday, October 5, 2010

FRA NPRM – Emergency Escape Breathing Apparatus

Today the Federal Railroad Administration published a notice of proposed rule making requiring railroads that transport asphyxiant gases or toxic inhalation hazard (TIH) chemicals to provide train crew members with emergency escape breathing apparatus’ (EEBA). The EEBA would be used in the event of an accident that might cause the release of such toxic hazards and place the train crews’ life at risk.

As a result of a couple high-profile rail accidents where catastrophic releases of chlorine gas resulted in the death of railroad employees, Congress included in the Rail Safety Improvement Act of 2008 (RSIA, Public Law 110-432). That regulation mandated that DOT “adopt regulations requiring railroads to provide EEBAs for the train crews in the locomotive cabs of any freight train transporting a hazardous material in commerce that would present an inhalation hazard in the event of a release” (75 FR 61387).

While this NPRM is leaving most of the decisions as to what type of EEBA the railroads may employ, they are mandating the use of NIOSH/ISO approved self-contained, air-supply respirators that cover the head and neck and provide air for at least 15-minutes. The proposed rule also mandates training for the use of such EEBA, though there is no requirement for medical clearances found in OSHA respirator programs (though is not the same type program as there is no expectation of routine use of these EEBA).

All crew-members and railroad employees riding on trains that have cars containing asphyxiating gasses or TIH chemicals must have EEBAs. Two railroad unions are requesting that DOT expand that requirement to trains that run on lines where the covered chemicals are transported, presumably to protect crews against the kind of accident that occurred in 2004 near Macdona, Texas. The NPRM requests comments on this suggestion.

Missing Requirements

The NPRM notes that, because a lethal cloud of toxic gas can spread quickly in the event of a catastrophic release, “the crew may need to respond to an incident by donning their EEBAs even before assessing the damage caused by an accident” (75 FR 61391). This is due to the fact that there are no provisions for detecting release of asphyxiant gasses released in the event of an accident. Since many of the covered chemicals are colorless and odorless this provides a special hazard, not only to the train crews, but also to local communities and first responders.

To make the use of the EEBA effective, the train crews will have to be trained to respond to all accidents by donning their EEBA and evacuating the train to a safe distance upwind from the accident. They will have to be told not to do any assessments of the extent of damage or to take any mitigation efforts.

FRA should take advantage of this Congressionally mandated safety program to include a requirement to have chemical detectors and alarms located on all asphyxiant gas and TIH railcars. This would let the train crews know when there was a leak requiring the employment of their EEBA. If no alarm was heard, they could safely perform other post accident duties typically required by their jobs. This would also be of benefit to any first responders showing up on the scene.

It is not clear how the FRA intends for train crews to know that they have evacuated to a safe location. Again, many of the covered chemicals cannot be detected by the human senses. Any requirement to use an EEBA should be accompanied by a requirement to provide a personal detector for the chemicals involved. This is the only way that train crew members will know if they have moved to a location where it is safe to remove their EEBA. Lacking a method of determining a safe location to remove the EEBA the requirement for providing an EEBA provides no safety what so ever to the train crew members.

The three year re-training period is totally inadequate for a safety skill that the FRA reports is unlikely for the average crew man to actually use in practice. In addition to the training requirement, there should be a requirement for the periodic drill requiring the train crew to evacuate a locomotive using the EEBA.

First Step

The FRA spends a great deal of time in this NPRM justifying their failure to require this type of protective equipment for railroad employees. They note the death rate from toxic chemical exposure is just “1 death per 3.67 billion train-miles” (75 FR 61389) over the last ten years of available data (1997 to 2006). It seems obvious that DOT would not have acted on this issue without the Congressional mandate provided in RSIA.

A serious look needs to be taken at providing a similar requirement for other transportation workers. Truck drivers hauling similar chemicals are involved in more accidents per mile than their railroad counterparts. It would seem logical to assume that they should also have access to EEBAs to protect them from similar hazards. Transportation worker safety is already a legal mandate, so there is no need for specific Congressional authorization for DOT to require this type of safety equipment.

I hope that FRA is able to proceed more quickly on this issue than they have to date. It has been two years since Congress mandated this regulation and we are just at the point where an NPRM has been issued. Based on the accident rates quoted in this proposed rule, it would not be unexpected to have another railroad crew member death from toxic gas exposure before FRA completes this rule making process. The faster the final rule goes into effect the less chance that there will have to be another rail worker dying from this predictable type of exposure.

Comments on this NPRM may be filed electronically at www.regulations.gov (citing docket number FRA-2009-0044). Comments need to be filed by December 6, 2010. The FRA does not currently have any plans to hold a public meeting on this NPRM.

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