Wednesday, December 8, 2010

FRA Risk Reduction Program ANPRM

Today the Federal Railroad Administration (FRA) published an advance notice of proposed rule making in the Federal Register (75 FR 76345-76351) outlining what a safety risk reduction rule might look like for Class I railroads, each railroad with an inadequate safety record and passenger railroads. Such a rule is required to be published by §103 of the Rail Safety Improvement Act of 2008 (RSIA, PL 110-432). The deadline for that requirement is October 16, 2012.

The final rule would require the development of, and FRA approval of, a Risk Reduction Program (RRP) supported by a risk-based hazard analysis and a Risk Reduction Program Plan (RRPP). The FRA would also expect to include a requirement for them to conduct an annual review of the RRP implementation.

Inadequate Safety Record

This ANPRM is of potential interest to the hazardous materials shipping community because of the role that the shipment of hazardous materials could play in the determining of whether or not a railroad is required to develop an RRP. While all Class I railroads would be so required, other railroads would only be covered by the final rule if the Secretary of Transportation determined that they had an ‘inadequate safety record’. One of the purposes of this ANPRM is to seek public input on how to define that standard.

The discussion in the ANRPM lists a number of possible factors that might be included in the analysis. The potential factors listed (75 FR 76348) include the following hazmat related issues:

• The number of “(n)on-accident hazardous material releases” per million train-miles within the previous five years.
• “Any serious accident/incident involving hazardous materials and whether any such accident/incident led to an evacuation, environmental damage, or a personal injury/fatality.”
Additionally the FRA might consider certain hazmat shipment measures in weighing the factors discussed above. Those measures (75 FR 76349) could include the:

• “Share of a railroad’s revenue from the shipment of hazardous materials;” and
• “Share of a railroad’s revenue from the shipment of hazardous materials in a major metropolitan area”.
Public Comments Requested

The purpose of any ANPRM is to invite public comment on the possible regulation and this ANPRM is no different. The FRA requests general comments on how an RRP could be implemented to meet the RSIA requirements “in a manner that maximizes benefits without imposing excessive, unjustified, or unnecessary costs” (75 FR 76349). In addition the ANPRM lists 41 specific questions that the FRA would like the public to answer. None of those questions specifically addresses hazmat issues.

Comments may be submitted via the eRule Making Portal (Docket # FRA-2009-0038). Such comments should be submitted by February 7, 2011.

Toxic Inhalation Hazard Chemicals

There is nothing in this ANPRM that differentiates between different classes of hazardous materials and the different levels of safety risk posed by those classes. I think that the level of public safety risk posed by the release of a commonly shipped flammable liquid like ethanol is significantly different from a similar release of a commonly shipped toxic inhalation hazard chemical like chlorine. This means that any measure of an inadequate safety record should include an increased weighting of releases of TIH chemicals.

Similarly, if the FRA is going to consider as a weighting factor the share of revenue due to either the general shipment of hazmat or the shipments of hazmat through a major metropolitan area, there should be an additional consideration of the TIH shipments in either category. In fact, FRA should consider setting a level of TIH shipments, an absolute measure such as number of shipments or number of pounds shipped through a major urban area, that de jure indicates that a railroad has an ‘inadequate safety program’ because of the inherent risk of the potential deadly effects of a TIH release on a large urban populous.

Any consideration of a risk reduction program needs to address the activities that the covered railroad will do to mitigate the risk. Risk prevention is an important part of that mitigation, but an adequate risk prevention program for TIH shipments must also address plans for emergency response to the release of such chemicals. I would like to suggest that any risk prevention program requirements must include a comprehensive emergency response program for any railroads that carry a reasonable minimum number of shipments through large urban areas.

Such an emergency response program must include requirements for:

• Emergency response planning coordination with and assistance to local emergency response agencies,
• Participation in local emergency response exercises,
• Leak and catastrophic release detection equipment on all TIH cars,
• Train crew emergency communications with local emergency response agencies, including real-time notification of the presence of such shipments, and
• Reporting of all detected TIH releases in large urban areas.
There will be some that advocate requiring re-routing of TIH shipments around these large urban areas as a minimum risk reduction measure. That would certainly reduce the risk of dangerous TIH exposure for those populations. There are, however, current regulations that already address the routing decisions. Whether or not those rules are adequate is not germane to the discussion of this ANPRM. Whether or not an adequate justification can be made for selecting a TIH routing through a major urban area does not change the potential risk imposed on that population. Any risk reduction program must address those risks.

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