Explosives Transport Safe Haven Rule

On Tuesday the Pipeline and Hazardous Material Safety Administration published their final rule on safe havens for enroute storage of explosives. This final rule incorporates by reference the National Fire Protective Association’s standard (NFPA 498) and establishes this as an acceptable standard for the establishment of safe havens for unattended storage of explosives incident to transportation.

Security Standards

PHMSA did not establish any security requirements above the minimal recommendations in NFPA 498. They did note that each shipper and carrier already has responsibility for establishing a security plan for the transportation of the Division 1.1, 1.2, and 1.3 explosives covered in this rule. That plan should address the security requirements for storage incident to transportation at these safe havens.

Federal Preemption

PHMSA did not establish the NFPA standard as the requirement for safe havens; it merely said that safe havens established to the NFPA standard would be acceptable to DOT. This means that State and local agencies can still establish local rules for safe havens that could potentially conflict with the NFPA standards without running afoul of Federal preemption rules.

CFATS Issue

Not addressed in this rule is the CFATS status of these safe havens. Since these explosives are chemicals and most of those chemicals are listed in Appendix A, any storage of the listed COI above the screening threshold quantity (STQ) listed in Appendix A would trigger Top Screen reporting requirements. The CFATS rules do not provide any exception for short term inventory. According to §27.200(b)(2):

“A facility must complete and submit a Top-Screen in accordance with the schedule provided in § 27.210, the calculation provisions in § 27.203, and the minimum concentration provisions in § 27.204 if it possesses any of the chemicals listed in Appendix A to this part at or above the STQ for any applicable Security Issue.”

The security plan for such safe havens will be complicated by the fact that most commercial explosive pose both a bulk-release hazard and packaged theft-diversion hazard. Further complicating matters is the potential that these facilities will spend significant amounts of time without any inventory on site.