Sunday, March 20, 2011

New PHMSA Bulk Transfer Rule – Security Issues

In a blog posting earlier this week I discussed some of the considerations that would need to be included in the hazard assessment to be required by the newly proposed PHMSA rules for bulk loading and unloading of hazardous materials to and from tank trucks. Readers of this blog might have been surprised that I didn’t discuss the review of a potential terrorist threat as one of the hazards that would need to be included in the proposed hazard assessment. The reason is simple; PHMSA specifically excludes security issues from consideration in their NPRM.

In the preamble to this proposed rule PHMSA states that: “Security and incidental storage of bulk transport tanks are beyond the scope of this rulemaking action.” (76 FR 13317) While I personally object to this exclusion as being short sighted, I understand the reason that PHMSA has taken this position. After all, Congress has given TSA responsibility for transportation related security issues (while not providing the resources necessary to enforce those requirements, but that’s another issue). Furthermore, since the described hazmat transfers, by definition, take place at facilities, the highest risk facilities are already supposed to consider security risks under the CFATS program.

Having said that; PHMSA does briefly address at least one security issue in their discussion of the types of things that the risk assessment should address. In the preamble where they discuss the conditions that might affect the safety of the transfer operation PHMSA lists the following items that should be addressed in the risk assessment: “access control [emphasis added], lighting, ignition sources, physical obstructions, and weather condition” (76 FR 13320). ‘Access control’ is certainly a security issue.

Access Control and Transfer Operations

While not specifically outlined in the NPRM, there are two different types of access control that will need to be addressed in the risk assessment and the subsequent operating procedures. The first deals with the access of the tank truck to the facility and the second deals with the access of the driver. While the two would seem to be intimately intertwined, they need to be considered separately.

The truck entering the facility for transfer operations needs to be confirmed to be the truck and trailer that were supposed to be sent to the facility for that particular transfer. First, since the carrier was supposed to ensure that a risk assessment was done on the trailer before it arrived at the facility to ensure that it is safe for the load that it is to carry, it is important to check that the arriving tank wagon is the one upon which that risk assessment was done.

This can only be done by having the carrier independently communicate to the facility the identity of the tank wagon destined for a particular load. The person who clears the vehicle to enter the facility needs to have a listing of vehicles that will be coming into the facility with appropriate identifying information. That information needs to be in the hands of the facility before the vehicle arrives.

Before the transfer operations begin the vehicle needs to be checked to ensure that there is no new damage to the vehicle that would negate the previously done risk assessment. High-risk chemical facilities will also check to ensure that there are no improvised explosive devices placed on the vehicle. While this is essentially a requirement for high-risk facilities, all facilities should do at least a cursory inspection for this type of risk.

Access control for the driver of the vehicle is as important as checking the identity of the vehicle. Particularly where a driver is part of the transfer operations, the facility needs to insure that the driver is one who is appropriately trained in those operations as required by this NPRM. This is most easily done by requiring that the carrier provide certification on their vehicle notification that the identified driver is trained in accordance with the provisions of §172.704(a)(2)(iii) outlined in this NPRM.

High-risk chemical facilities will have additional requirements under the personnel surety requirement of RBPS #12. For drivers transferring the hazmat loads described in this NPRM will be required to have a Hazmat endorsement on their CDL, which requires a background check conducted by the TSA. Verifying the driver’s identity against that document and against the listed driver on the vehicle notification document should satisfy the RBPS #12 requirements.

Carrier Transfer Operations

Where the carrier has sole responsibility for transfer operations at a facility, there is still a facility responsibility for controlling access to their property. In fact, since the facility is surrendering control of the safety of the transfer operation to the carrier, it is probably more important to put strong access controls in place to ensure that at least the right person and the right vehicle are involved in the process.

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