Appendix A Revision – TIH Chemicals

As I have mentioned in a couple of different blog posts lately (here and here), the folks at DHS Infrastructure Security Compliance Division (ISCD, the CFATS people) have asked for comments about potential revisions to Appendix A, 6 CFR Part 27, the DHS list of chemicals of interest (COI). I’m going to start my look at Appendix A by looking at the Release-Toxic COI on the list  and what chemicals might be added to the list.

Background

The preamble to the Appendix A final rule defines the term ‘release-toxic’ as chemicals “with the potential to create a toxic cloud that would affect populations within and beyond the facility, if intentionally released”. Later DHS noted that it used the same EPA “listing criteria, including the EPA acute toxicity criteria and vapor pressure cut-off [10-mm Hg or greater]” used to establish the RMP list of toxic substances. DHS did remove three RMP toxic substances from the release-toxic list (the three toluene isocyanate isomer listings) because they did not meet the vapor pressure standards (EPA included them because of Congressional direction).

Interestingly (for reasons that will soon be obvious) the crafters of Appendix A turned to another regulatory agency for their definition of Theft/WME (weapons of mass effect), the another sort of toxic chemical covered by the CFATS regulations. Here they turned to DOT’s ‘gas poisonous by inhalation’ or Division 2.3. For Theft/WME DHS “listed all DOT Division 2.3 PIH gases including those in Hazard Zones A through D”.

Those Hazard Zones are a relative measure of the toxicity of the chemical based upon the LC₅₀ for the chemical. The LC₅₀ is the “concentration of vapor, mist, or dust which, administered by continuous inhalation for one hour to both male and female young adult albino rats, causes death within 14 days in half of the animals tested”. The hazard zones for Division 2.3 gasses are the same as those for Division 6.1 poisonous liquids.

Toxic Inhalation Hazard Chemicals

Of the 52 Release-toxic chemicals currently listed on the DHS COI list, seventeen are listed by DOT as Division 6.1 (poisonous material) chemicals {15 Division 2.3, 12 Class 8 (corrosive liquids), and 5 Class 3 (flammable liquids)}. Of those 17 listed in Division 6.1 twelve were listed in the two most deadly Hazard Zones (5 in Zone A; 7 in Zone B).

There are a total of 39 additional Division 6.1 chemicals listed in DOT’s 49 CFR 172.101 that also fall into Hazard Zones A and B. The reason that these chemicals do not fall under the RMP toxic definition is generally that these chemicals do not meet the ≥10mmHg vapor pressure standard used by EPA. In many cases this is because the vapor pressure is not publicly available (and as a production chemical veteran I assume that this is because no one has measured the vapor pressure, not a conspiracy to withhold information).

Now of the 17 chemicals on the EMP’s toxic list that are also included in DOT’s Division 6.1  five are found in Hazard Zone A and seven are in Hazard Zone B. The other five are of lower toxicity.

Proposal

I would like to propose that in the revised Appendix A that DHS list all 32 Division 6.1, Hazard Zones A and B chemicals not currently listed in Appendix A. The seven in Zone A (listed below) should be listed without condition due to their extreme toxicity (LC₅₀ < 200 ppm). Note: four of these chemicals (⁺) were not listed as Division 6.1 chemicals in 2007; additional testing by the Europeans revealed the extent of their toxicity since then and §172.101 has since been revised.

• tert-Butly isocyanate;

• Ethyl isocyanate⁺;

• Isobutyl isocyanate⁺;

• Isopropyl isocyanate⁺;

• Methoxymethyl isocyanate⁺;

• Methyl vinyl ketone; and

• n-Propyl isocyanate;

The remaining 25 in Hazard Zone B (listed below) should be listed unless their vapor pressure is < 10mmHg. Chemicals without readily available vapor pressure information would be provisionally listed in Appendix A until such time as an EPA accredited lab provided test data to show that their vapor pressure < 10mmHg. This provisional listing would provide manufacturers with a specific incentive to have the vapor pressure testing done. Currently the lack of RMP listing because of the lack of vapor pressure data acts as a disincentive to have the testing done.

• Allyl chloroformate;

• Bromoacetone;

• n-Butyl chloroformate;

• Chloroacetone;

• Chloroacetonitrile;

• 2-Chloroethanol;

• Chloropicrin;

• Cyclohexyl iscocyanate;

• 3,5-Dichloro-2,4,6-trifluoropyridine;

• Dikete;

• Dimethyl sulfate;

• Ethyl chloroformate;

• Ethyl phosphonothioic dichloride, anhydrous;

• Ethyl phosporodichloridate;

• Ethyldichloroarsine;

• Ethylene chlorohydrin;

• Ethylene dibromide;

• Hexachlorocyclopentadiene;

• Methanesulfonyl chloride;

• 2-Methyl-2-heptanethiol;

• Methyl iodide;

• Methyl isothiocyanate;

• Methyl orthosilicate;

• Methyl phospoonous dichloride;

• Methyldichloroarsine;

• Phenyl isocyanate;

• Phenyl mercaptan;

• Phenylcarbylamine chloride;

• Thiophosgene;

• Trimethoxysilane;

• Trimethylacetyl chloride;

NOTE: A copy of this blog was submitted to the Docket on 10-29-15 at 2:20 pm CDT

S 650 Introduced – PTC Extension

As I noted in an earlier blog posting Sen. Blunt (R,MO) introduced S 650, the Railroad Safety and Positive Train Control Extension Act. The Senate Commerce, Science and Transportation Committee held a markup hearing on the bill this week and recommended the bill favorably after amending it. The bill would extend various deadlines for the implementation of positive train control (PTC) technology on railroads.

Background

Congress required in 49 USC 20157 that all Class 1 railroads install a PTC system by December 31, 2015 on all rail lines over which toxic inhalation hazard (TIH) chemicals are transported. In implementing that requirement the Secretary of Transportation {49 CFR 236.1005} extended that requirement to all railroads that operated passenger rail lines on the same tracks over which TIH chemicals were transported.

There have been a number of challenges in meeting that deadline; both technical and regulatory. One of the problems that the railroads had was getting regulatory approval from the FCC for installing the track-side communications antennas. The FCC had originally required that each antenna installation undergo a separate permitting process, including a required historical commission review. That process was ultimately streamlined, but only after significant delays.

Wholesale Deadline Extension

Section 2 of the bill makes two changes to 49 USC 20157. The first extends the current deadline until December 31^st, 2020 {§2(b)(1) to §20157(a)(1)}. The second would change the date basis for determining which sections of rail line would be required to have PTC installations; requiring PTC installation on lines over which TIH chemicals are transported on or after December 31^st, 2015 {§2(b)(2) to §20157(a)(1)(B)}.

Retail Deadline Extension

Section 3 of the bill would also allow the Secretary of Transportation to authorize one year extensions to the implementation deadline on a case by case basis through 2022 {§3(a)(3) adding §20157(i)}. It goes on to outline the process by which the railroad would request the extension and the guidelines the Secretary would use in approving the extension. It provides a 10 day approval decision deadline after the Secretary receives the application.

Committee Amendment

The Committee amended the bill by adding a new section 5. This section amends §20157 by adding §20157(a)(3). It would require that each covered railroad would provide detailed annual reports to the Secretary about the progress they were making on the implementation of their PTC systems. The reporting requirement would continue until the Secretary certified the PTC installation under §20157(h).

In an interesting change of Congressional reporting requirements, the amendment did not require a summary report to Congress on the PTC implementation status. Instead it required the Secretary to make each report “available on the website of the Federal Railroad Administration” {§20157(a)(3)(D)}.

Moving Forward

Chairman Thune (R,SD) is obviously making the adoption of S 650 a priority for his Committee. It will be interesting to see how well that translates into moving the bill to the floor of the Senate.

The bill did have bipartisan support in committee. There will be some environmental and safety advocates who can be expected to object to the extension of this deadline. Given the fact that the current deadline cannot be met at this point, I would expect that those objections would take the form of modifying the new deadline date in the amendment process rather than stopping the bill from being considered.

I also expect that there will be an attempt made to add rail lines over which crude oil trains run to the PTC installation requirement. This has included in some other proposed legislation about crude oil trains, but getting that particular amendment added to this bill would probably be easier than getting the other bills through the legislative process. Such an amendment would also make the overall bill more palatable to safety and environmental advocates.

EPA Publishes 60-Day ICR for Methyl Bromide Program

Today the EPA published a 60-day information collection request (ICR) renewal notice in the Federal Register (79 FR 78425-78427) to support its program for the phase out of methyl bromide under the Clean Air Act and the Montreal Protocol on Substances that Deplete the Ozone Layer.

This notice reports a significant reduction in the reporting and record keeping burden imposed by this program due to the continuing reduction in the number of affected parties as the number of critical use exemptions to the phase out of methyl bromide continues to decrease. The table below shows that reduction since the latest version of this ICR was approved in 2011.

Affected Parties	Previous ICR	This ICR
Producers	4	4
Distributors	75	50
End Users	1800	1000

Long time readers of this blog will no doubt remember that I have long complained about the fact that methyl bromide was not included in the list of DHS chemicals of interest (COI) under the CFATS program even though it is a toxic inhalation hazard (TIH) chemical and thus potentially an improvised chemical weapon that could be used by terrorists. DHS initially included it in its proposed COI list but removed it from the final version because the EPA was phasing out the authorized use of this chemical and it would thus disappear from the potential list of industrial chemicals that terrorists could use as a chemical weapon.

The table above shows that there are potentially 1,054 entities that could have as much as 2,000 pounds of methyl bromide (the quantity that would require Top Screen reporting for similar TIH chemicals) in their possession at various times during the year. While some of these facilities may already be CFATS covered facilities (almost certainly the four producers are) due to the presence of other COI, many of the distributors and most of the end users would not be.

If DHS had included methyl bromide in their COI list they would have been able to assess the potential risk of theft and diversion of methyl bromide from these ‘other’ facilities. Because they incorrectly assumed that EPA was quickly phasing out methyl bromide, DHS has effectively ignored the potential threat of the use of methyl bromide as a terrorist weapon.

Unfortunately, when HR 4007 was passed by Congress, there was no specific requirement for DHS to review the current list of COI. Because DHS will be working hard on meeting the time tables for the implementation of HR 4007 I really doubt that we will see any real attempt to modify the list of COI any time in the near future. This is one of the incremental changes in the Chemical Facility Anti-Terrorism Standards that the new Congress ought to take a look at.

FRA Publishes Securement NPRM

Today DOT’s Federal Railroad Administration (FRA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 53356-53383) concerning the securement of unattended trains. This rule would update current regulations in place since 2001 is part of their on-going efforts to upgrade the safety and security of trains in response to a series of crude oil train derailments.

In general this rule would:

• Ensure that each locomotive left unattended outside of a yard be equipped with an operative exterior locking mechanism and that such locks be applied on the controlling locomotive cab door when a train is transporting tank cars loaded with certain hazardous materials;

• Provide that certain hazardous materials trains may only be left unattended on a main track or siding if justified in a plan adopted by the railroad, accompanied by an appropriate job briefing, and proper securement is made and verified; and

• Require additional verification of securement in the event that a non-railroad emergency responder may have been in a position to have affected the equipment.

The requirements in this NPRM would apply to:

• Any loaded freight car containing PIH material, including anhydrous ammonia and ammonia solutions; or

• Twenty (20) or more loaded cars or loaded intermodal portable tanks of any one or any combination of PIH materials (including anhydrous ammonia and ammonia solutions), or any flammable gas, flammable or combustible liquid, explosives, or a hazardous substance listed at § 173.31(f)(2) of this title

The location specific securement plans are not required to be submitted to, or approved by, FRA. They are, however, required to be made available to the FRA upon request; and the FRA may require changes to the plan {§232.103(n)(7)(i)}. The FRA must be notified when such plans are adopted or changed.

While not explicitly stated in the revised CFR language provided in the rule, the preamble makes it clear that the requirements for a second employee’s verification of proper securement may be done without physical attendance at the site of the securement;

“This may be done by relaying pertinent securement information (i.e., the number of hand brakes applied, the tonnage and length of the train or vehicle, the grade and terrain features of the track, any relevant weather conditions, and the type of equipment being secured) to the qualified railroad employee. The qualified railroad employee must then verify and confirm with the train crew that the securement meets the railroad's requirements.”

Interestingly the preamble specifically states that “proposed paragraph (n)(8)(i) does not contain a requirement that the railroad maintain a record of the verification of proper securement.” This will make enforcement of this provision very iffy.

FRA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FRA-2014-0032). Comments should be submitted by November 10^th, 2014.

OMB Approves FRA Securement NPRM

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the DOT’s Federal Railroad Administration’s (FRA) notice of proposed rulemaking on hazmat train securement. This proposed rulemaking was not listed in the Administration’s Spring Unified Agenda.

As I noted in an earlier blog post this NPRM probably looks like the rule proposed by the FRA’s Railroad Safety Advisory Committee (RSAC) back in April. That proposed rule would apply to trains with single cars of toxic inhalation hazard (TIH) chemicals or trains with 20 cars (total) of almost any other hazardous material. It would cover most freight trains that I have watched at road crossings over the years.

This rulemaking apparently has a high level of interest within the Administration. It was submitted to OIRA on August 15^th and approved yesterday; that is fast action time for OMB. I expect that it will be published in the Federal Register later this week.

Reader Questions – CSF Notifications

Yesterday I had two interesting questions posed to me about my post on the DHS designations of cyber dependent critical infrastructure.

First on TWITTER® from Aristotle Tzafalias - “Know of any non ‘Cyber dependent’ (as defined in prev) CI?”

And then on my blog from an anonymous reader - “Any thoughts on what sectors (and representative companies) make up the greatest representation?”

Both are important questions for homeland security reasons and I won’t be able to answer either definitively because DHS will not be disclosing either their list of ‘Critical Infrastructure’ facilities nor of their ‘Cyber Dependent Critical Infrastructure’ (CDCI) facilities for security reasons. That won’t, of course, stop me from offering my thoughts on the matter.

Critical Infrastructure

There are a number of variations of the basic definition of ‘critical infrastructure’ that are in current use. To make things easy let’s stick with the one found in §2 of the President’s executive order on Improving Critical Infrastructure Cybersecurity (EO 13636):

“As used in this order, the term critical infrastructure means systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.”

With the large number of undefined terms in that sentence it is obvious that there is a wide leeway for determining what is or is not ‘critical infrastructure’. In the narrowest sense I can think of only a single entity, the New York Stock Exchange, whose incapacity or destruction would have a debilitating effect on national economic security.

If we look at ‘systems’ however, there are a much wider variety of systems that would fit the bill. These could include the electric grid, fuel distribution systems, communications systems. In fact, the President has identified 16 critical infrastructure sectors of the economy that would meet a broad definition of critical infrastructure. Again, it is hard to imagine that the failure of any single entity within those sectors would meet the definition of critical infrastructure by themselves, but a limited number of individual failures within a sector could certainly have debilitating effects on the national economy or security.

I think that a reasonable supposition about how DHS has gone about determining which facilities are to be considered critical infrastructure would be those facilities that, if more than a couple failed at about the same time, there would be debilitating consequences for the national security or national economy. I think that most reasonable people would agree that this type of methodology would be the most usable way of designating critical infrastructure.

Cyber Dependent Critical Infrastructure

Aristotle raised an interesting question in his TWEET®; in today’s age isn’t everyone ‘cyber dependent’? To a certain extent this is true, but some sectors rely on cyber-systems more heavily than others. The ‘Information Technology Sector’ certainly relies more on their computers than does the ‘Dams Sector’, but no sector could long survive with their various electronic systems not functioning.

Using the broadest interpretation of the definition provided in yesterday’s Federal Register notice I would be hard pressed to think of any organization that would not be considered ‘cyber dependent’. And if DHS used that broad sweep to include all critical infrastructure, then the whole point of the exercise was lost. Section 9(a) of the EO required DHS to “use a risk-based approach to identify critical infrastructure where a cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security” [emphasis added].

So, instead of a complete loss of computer systems, DHS should have been looking at more limited incidents at these facilities that could result in ‘catastrophic’ effects. To be sure this would be a much more difficult standard to parse as DHS does not have a lot of internal information about most of these organizations and their systems. And again, even considering potential regional effects, there are very few facilities where a single cyber incident would cause catastrophic effects, so we should clearly expect that DHS would consider facilities where just a few related facilities affected by similar and concurrent attacks would cause catastrophic effects.

Now in my opinion, you are looking at just three types of facilities, the national stock exchanges, the electrical distribution system and fuel distribution pipelines. The remaining sectors have too much redundancy to be catastrophically disrupted by any reasonable set of cyber incidents. There could be economic disruptions in all sectors, but few that would even approach catastrophic on a regional or national basis.

Chemical Catastrophes

It might seem strange that I do not include the chemical sector or at least chemical facilities storing large quantities of toxic inhalation hazard (TIH) chemicals in the list of cyber dependent critical infrastructure. After all, we continue to hear organizations like Green Peace insist that a catastrophic release at many of these facilities could result in deaths of hundreds of thousands of people. Wouldn’t that be a catastrophe on a regional or national scale?

It certainly would, but I would have a hard time positing a reasonable cyber incident that would result in a catastrophic release of one of these chemicals. A release yes, even a release that resulted in off-site casualties; certainly. But not a catastrophic release of the scale discussed by these organizations (and to be fair by me here in this blog), that would take a failure of the physical structure of the tank. A cyber incident could, at most, result in a valve being opened to the atmosphere that would take dozens of hours to release the total contents to the atmosphere. Long before that happened, manual efforts to close the line would be successful.

What about water system contaminations like we saw in Charleston, WV? While the Freedom Spill was certainly disruptive, even severely disruptive, to the lives of the folks that live in that area, it was hardly a catastrophe. But let’s assume that the definition of ‘catastrophe’ was wide enough to encompass that scale of disruption. I would be hard pressed to define a ‘reasonable’ cyber incident that would cause that type of problem. You would have to find an upstream facility that held a chemical that would not be removed by the municipal water treatment facility and find a way to electronically release that chemical in a way that bypassed existing secondary containment. You could not have done it at Freedom Industries; their tank valves were all manually operated.

There may certainly be facilities where this could be done. Identifying them would be very difficult for DHS and nearly impossible for anyone else but an insider. I’m certainly not saying that DHS or EPA shouldn’t be looking at this, but it wouldn’t be part of the cybersecurity program; at least not initially.

What Has Actually Been Done?

So that is my take on the limitations of the cyber dependent critical infrastructure designations covered by this notice. How closely does that track with reality? I haven’t the foggiest idea, DHS is keeping this information fairly closely held; they certainly are not discussing it with me.

I would guess that they are using a wider set of criteria than those that I have describe above. There is a certain bureaucratic incentive to broadly define the problem. The more facilities that are designated CDCI the more responsibility that DHS has for their oversight and assistance. So I would guess they include many more, and different types of, facilities than I have described. Which ones and how many? I just have no way of knowing.

EPA Publishes Very Late NPRM for 2014 Methyl Bromide CUE

Last Friday the Environmental Protection Agency (EPA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 13006-13017) for the 2014 and 2015 critical use exemptions (CUE) for the use of Methyl Bromide.

Critical Use Exemptions

In the past these CUE rules have been done on an annual basis, but the EPA has been getting later and later in introducing the NPRM and publishing the final rule for this recurring action. The 2013 NPRM, for instance was published in December 2012 with the subsequent final rule being published in July 2013. Friday’s publication of the NPRM for the 2014 use of methyl bromide means that the final rule won’t be published until almost all of the approved uses of methyl bromide have been completed for the year. Including the 2015 CUE in this NPRM means that for the first time in years, producers and users of methyl bromide will have their legal authorization to produce and use the material before they actually do so.

Last year, EPA included in the public docket for the final rule a copy of the letter that it sent to users and producers of methyl bromide in December of 2012 notifying them that while the rulemaking process was underway for the 2013 CUE that EPA would take no regulatory action against users and producers that were listed in the NPRM for the use or production of the listed amounts of methyl bromide. I am relatively certain that a similar letter was sent for this year’s CUE, though it is not yet in the public record. With the 2015 CUE being included in this NPRM, perhaps the EPA will not be forced to take such extra-legal actions for the 2015 growing season.

The table below lists the approved producers/importers of methyl bromide and the amounts (in pounds) that they will be authorized to produce/import during 2014 and 2015 along with the number’s from last year’s rule.

	2013 CUE	2014 CUE	2015 CUE
Great Lakes Chemical	765,466	602,130	513,054
Albemarle Corp	314,778	247,609	210,981
ICL-IP America	173,952	136,835	116,590
TriCal Inc	5,146	4,260	3,361
Total	1,259,610	979,635	844,256

Methyl Bromide Phase Out

It is obvious that while the phase out of methyl bromide continues it will continue to be used and produced in this country for the foreseeable future. Thus (here it comes), the DHS basis for not including this toxic inhalation hazard chemical in the DHS list of chemicals of interest (COI) is still questionable. DHS should take steps to add this chemical to the list of chemicals that could require facilities to report under the Top Screen provisions of the CFATS regulations.

Public Comments

The EPA is soliciting public comments on this proposed rule. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OAR-2014-0065). Comments should be submitted by April 21^st, 2014.

FRA Publishes PTC NPRM Extension Notice

The Federal Railroad Administration (FRA) published a notice (78FR 5767-5770) in Monday’s Federal Register (available on line yesterday) that extended the deadline for comments on their notice of proposed rulemaking (NPRM) published in December 2012 that makes changes to the current positive train control (PTC) system requirements. The new deadline for comments is now March 11, 2013.

The notice specifically clarifies some railroad operational questions that it wishes additional comments upon, but any comments on the NPRM will be accepted during the comment extension.

The NPRM would allow railroads to request that certain miles of track be removed from the requirement for the installation or maintenance of a PTC system under relatively low usage rates for carrying toxic inhalation hazard (TIH) chemicals. This could lower railroad costs for handling TIH chemical on those track segments.

FRA Publishes PTC Revision NPRM

Today the Federal Railroad Administration published a notice of proposed rulemaking (NPRM) in the Federal Register (77 FR 73589-73608) that would revise some current regulations concerning the implementation of positive train control (PTC) systems. The NPRM addresses some of the concerns of the Association of American Railroads (AAR) expressed in their petition for rulemaking.

Some of the proposed rules would directly affect the transportation of toxic inhalation hazard (TIH) or poison inhalation hazard (PIH) chemicals by railroads. Those provisions include:

• Modifying the specific exception to raise the number of freight cars containing PIH materials from 100 cars to 200 cars;

• Removing the traffic limitation of 15 million gross tons from the general de minimis exception in paragraph (b)(4)(iii)(C); and

• Adding a yard movement de minimis exception that would authorize movements by unequipped locomotives over PTC-equipped main line track segments for the purpose of switching service or transfer train movements.

The FRA is soliciting public comments on this proposed rule. Such comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FRA-2011-0061). Those comments need to be filed by February 11^th, 2013. The FRA does not currently plan to hold any public meetings concerning this NPRM, but will consider requests for such meetings if submitted by January 10^th, 2013.

Implications of FRA PTC Revisions – Rerouting Decisions

Last month I briefly described the latest notice of proposed rulemaking (NPRM) published by Federal Railroad Administration (FRA) concerning changes to the way the FRA intends to administer the Congressionally mandated positive train control system (PTC). This post, the second in a series of posts, will look at the potential effects on TIH routing decisions that will be made by individual railroads. The other post in this series was:

Implications of FRA PTC Revisions – STB Rate Disputes

Rail Routing Rules

Before the PTC regulations went into force the FRA and the Pipeline and Hazardous Material Safety Administration (PHMSA) put safety and security rules into force that required railroads to make formal routing decisions for, among other highly hazardous materials, TIH chemicals. Those rules required that the analysis would take into account twenty-seven separate factors, one of which was cost. The rule does not specify the weighting to be given to each of those separate factors.

It has been clear from the start of the PTC rulemaking process, and even going back to the Congressional discussions that lead-up to the mandate for the rule, that the installation of PTC systems was going to increase the operating and capital costs of railroads. A number of commenters, myself included, questioned if those increased costs would be used to justify the movement of TIH routes back along urban area rail lines that would be required to have PTC systems even without the TIH chemicals or already carried TIH traffic.

One of the mitigating factors in the current PTC rules that makes this transfer of risk more difficult is found at §236.1020. That section outlines the so called ‘alternative route analysis test’ that requires justifying the routing change by showing that the new line presents no higher overall safety and security risk as the old line, assuming that both carried the TIH shipments. This reinforces the current TIH-routing safety and security rules.

Weakening Routing Rules

This NPRM would remove §236.1020; making the simple removal of TIH traffic from a line not otherwise required to have PTC systems installed the sole requirement for removing that line segment from the PTC requirement.

Since the current TIH routing rules do not require railroads to get their routing decisions approved by either FRA or PHMSA, there is no longer a requirement for any federal agency to review the routing changes that will be made to avoid installing PTC systems on line segments that would only be covered due to their TIH loadings.

The FRA estimates that this rule would affect about 10,000 miles of rail lines.

Favoring Urban Routings

This means that there will be an added incentive for railroads to switch TIH traffic to those lines that also carry passenger trains. Such co-routing would significantly decrease the number of miles that would need to be included in the PTC system, reducing the overall cost of the PTC rule.

Passenger rail lines, almost by definition, run through urban and suburban population centers. After all this is where the people live and work. This means that this proposed rule will almost certainly increase the number of urban and suburban lines that carry TIH chemicals.

The reduced speed limits for these lines will certainly limit the number accidents that will result in the release of TIH chemicals, especially catastrophic releases. Unfortunately, the same risk reduction cannot be applied to the potential for attacks on these railcars. These cars are difficult to attack because of their robust design, but they do become more likely targets as they traverse populated areas, particularly major urban areas. The increased target value will also ensure the increased likelihood that professional terrorists, with the skills and tools necessary to successfully attack these harden targets, will be involved in their attack.

Implications of FRA PTC Revisions – STB Rate Disputes

A couple of weeks ago I did a posting about the Federal Railroad Administration’s (FRA) notice of proposed rulemaking (NPRM) concerning revisions to the criteria that would be used to determine which rail lines would be required to have expensive positive train control (PTC) equipment installed. Today I would like to take a look at the possible implications such a change would have for shippers of toxic inhalation hazard (TIH or PIH, poisonous inhalation hazard if you prefer) chemicals.

Background

Generally speaking the railroads would prefer to not provide transportation for TIH chemicals. The potential liability issues that could arise from a catastrophic accident that resulted in the wholesale release of a TIH chemical in a populated area are quite possibly corporate killing. Given the fact that they are not currently able to charge a potential liability premium on their TIH rates, one can sympathize with their position.

On the other hand, rail shipment of bulk TIH chemicals is undoubtedly the safest way to transport these materials from producer to consumer. Railroads have an outstanding safety record with hands down the fewest accidents per ton-mile of any transportation mode other than pipelines. Add to that the fact that the robust design of TIH railcars makes a catastrophic release of TIH chemicals unlikely in all but the most violent accidents. That design also makes them relatively hard targets for terrorist attack.

Fortunately for shippers, railroads are not able to deny carriage of TIH chemicals under what is known as their ‘common carrier obligation’. Since most railroads have a near physical monopoly on ownership of the lines over which they travel Congress set out a number of rules that prevented railroads from charging monopolistic rates. One of those rules required them to provide transport to any ‘properly presented shipment’.

The PTC requirements mandated by Congress in Section 104 of the Railroad Safety Improvement Act of 2008 (Public Law 110-432, 122 Stat. 4854) added an additional cost burden on the railroads that transported TIH chemicals. They are being required to add expensive automated control systems on any line that carries TIH chemicals and annually carries 5 million gross tons of freight.

The original PTC rule required that any line that met the TIH transport requirements as of 2008 and any line that added TIH transport and met the gross tons requirement would have to have PTC equipment added to the line. This rule does not change that basic requirement, but it does make it significantly easier to remove a line segment from PTC installation requirements if it no longer carries TIH chemicals as of January 1^st, 2016.

Rule of Unintended Consequences

It certainly makes sense to allow the railroads to not equip lines with PTC equipment that do not currently meet the requirements for that installation. Unfortunately, this proposed change, if implemented, would give railroads an even greater financial incentive to deny carriage of TIH chemicals on certain lines.

Since legally railroads cannot not actually deny carriage of properly offered shipments (conforming to government shipping, safety and security regulations and ‘reasonable’ railroad rules) the railroads would have to rely on financial incentives or disincentives to get shippers to not ship TIH commodities on specific rail lines. The easiest way to do that would be to charge excessive shipping rates for those shipments.

The Surface Transportation Board (STB) regulates and moderates the setting of rail shipping rates. They have seen a number of cases in the last couple of years where various railroad have effectively tried to price TIH shipments off of their lines. While a number of these rate disputes are still pending, the STB has generally resisted the more egregious efforts by the railroads to price TIH chemical shipments off of their lines.

I would expect that if this rule goes into effect there will be even more such disputes brought before the STB. In fact I would expect a whole slew of them to appear in late 2014 and 2015 as the deadline approached. This would be due to the wording of . This would be due to the proposed wording of §236.1005(b)(4)(ii)(C):

“The cessation or expected cessation [emphasis added] of PIH traffic over the involved track segment prior to January 1, 2016”

With no standard for what constitutes ‘expected cessation’ a railroad could argue that they expect that the STB would rule in their favor in a rate dispute and that would result in the shipper no longer using their service over a particular line segment. A good example of the type of complaint where this argument might be legitimately used would be the current dispute between Canexus Chemicals Canada and the BNSF railroad (STB Docket: FD 35524).

Even if the railroad had to subsequently add that segment back to the PTC covered list, it might be able to avoid the installation cost for a number of years as it wouldn’t be covered under the initial installation plan. Additionally, it would be better able to justify to the STB using the cost of the PTC system for that added line segment as part of the cost equation for setting ‘reasonable’ rates for transporting the TIH chemical over that line. That would allow the railroad to recoup at least a portion of their PTC costs from a single shipper.

More Unintended Consequences to Come

I’ll look at some further implications of this rule in future blogs. 

FRA Publishes NPRM Amending PTC Requirements

Today the Federal Railroad Administration (FRA) published in the Federal Register (76 FR 52918-52929) the notice of proposed rulemaking (NPRM) that I briefly mentioned in an earlier blog posting. According to the preamble to the NPRM:

“This notice proposes the removal of various regulatory requirements that require railroads to either conduct further analyses or meet certain risk-based criteria in order to avoid PTC system implementation on track segments that do not transport poison- or toxic-by-inhalation (PIH) hazardous materials traffic and are not used for intercity or commuter rail passenger transportation as of December 31, 2015.”

Background

In 2008 Congress mandated {Section 104 of the Railroad Safety Improvement Act of 2008, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008)} that the FRA establish requirements for the installation of automated positive train control systems (PTC) to control the operation of trains on certain designated lines. One of the methods of designating those lines required to be equipped with the expensive equipment was if a line segment provided transportation for poisonous (or toxic) by inhalation PIH (or TIH) chemicals as of 2008.

The railroads objected to the use of that date because other changes were made to rule concerning the transport of PIH chemicals at about that time that required potential changes to rail routings of those materials due to security and safety considerations. Those changes could have left the railroads with PTC mandates on lines that no longer qualified based upon their PIH tonnage.

Provisions were made for allowing railroad to request approval from the FRA to remove line segments from the PTC requirements. The requirements for that removal were stricter than those for the original classification of PTC covered segments. The American Association of Railroads filed a petition for review with the US Court of Appeals and ultimately reached a settlement agreement with the FRA that resulted in the publication of this NPRM.

New Requirement

The NPRM proposes to change the wording of 236.1005(b)(4)(ii) that would allow for changes to the PTC implementation requirements based upon three simple criteria:

(A) The cessation of passenger service on the involved track segment prior to January 1, 2016;

(B) A decline in gross tonnage below 5 million gross tons annually as computed over a 2-year period on the involved track segment; or

(C) The cessation or expected cessation of PIH traffic over the involved track segment prior to January 1, 2016.

The FRA predicts that this change would result in the removal of about 10,000 miles of rail line from the requirement to install PTC systems at a savings to the railroads of approximately $620.

Public Comments

As with all proposed rules, the FRA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; docket number FRA-2011-0028). Such comments need to be submitted by October 24, 2011.

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.

Positive Train Control Systems

Earlier this week the Federal Railroad Administration (FRA) published a notice of proposed rule making implementing the Positive Train Control (PTC) Systems requirements set forth in the Railroad Safety Improvement Act (RSIA) of 2008 (Public Law 110–432). While this is a highly technical proposed regulation primarily affecting the railroad industry, it has the potential for directly affecting the shipment of TIH chemicals by rail and rail-rerouting plans. I’ll address these issues in a later blog. Comments may be submitted electronically at www.Regulations.gov (Docket No. FRA-2008-0132). Comments should be submitted by August 20th, 2009 though comments received after that may still be considered. Public Hearing The FRA also announced a public hearing concerning this NPRM. The hearing will be held in Washington, D.C. on August 13th. The meeting will last all day (9 a.m. to 6 p.m.). Written notification of intent to present oral testimony at the hearing should be faxed to the FRA Docket Clerk at (202) 493-6068 or sent by mail to:

FRA Docket Clerk Office of Chief Counsel Federal Railroad Administration 1200 New Jersey Ave. SE.,RCC-10, Stop 10 Washington, DC 20590

Notification should identify the party the person represents, the particular subject(s) the person plans to address, and the time requested. The notification should also provide the Docket Clerk with the participant's mailing address, other contact information and three copies of the oral statement to be presented.