House Passes HR 2786 – Cross-Border Rail Security

This evening the House passed HR 2786, the Cross-Border Rail Security Act of 2015, under suspension of the rules. With limited debate (just six minutes) and no floor amendments, the bill was passed by a vote of 412 to 0.

As I mentioned in an earlier post, this bill continues the Congressional obsession with the possible smuggling of nuclear or radiological devices into the United States while ignoring the much more common threat of large shipments of toxic inhalation hazard chemicals that frequently enter the country by rail without being checked for potential improvised explosive devices.

HR 2786 Introduced – Cross Border Rail Security

Last week Rep. Vela (D,TX) introduced HR 2786, Cross-Border Rail Security Act of 2015. The bill would require a report to Congress on efforts to inspect high-risk cross  border rail shipments.

The bill would require the Commissioner of U.S. Customs and Border Protection (CBP) to submit a report to Congress. The report would include {§2(a)}:

∙ The number of shipments entering the United States by rail annually that are determined to be high-risk by the Commissioner;

∙ Specific details on the status of radiation detection units, by type, at each rail crossing on the northern and southern land borders as of such date of enactment;

∙ An assessment of whether additional radiation detection equipment is necessary to ensure that all such high-risk cross-border rail shipments are examined with appropriate equipment; and

∙ A plan for ensuring that all relevant CBP personnel receive adequate training and guidance on the proper use of CBP’s Automated Targeting System for such high-risk cross-border rail shipments.

The bill would also require periodic audits by the GAO of CBP “operations at rail crossings on the northern and southern international borders to ensure rail shipments are targeted, examined, and the results of such examinations properly documented” {§2(b)}.

Moving Forward

Vela is the Ranking Member of the Border and Maritime Security Subcommittee of the House Homeland Security Committee and his co-sponsor on this bill, Rep. Miller (R,MI) is the Chair. This bill obviously has high-profile, bipartisan support and will be considered by the Homeland Security Committee. Since the bill requires nothing but another report to Congress there will be no active opposition to the bill. If and when it comes to the floor of the House it will almost certainly be considered under suspension of the rules and will pass with a solid bipartisan vote.

Commentary

This bill continues to reflect the congressional obsession with the potential for smuggling of nuclear weapons or radiological materials into the United States for use in a terrorist attack. While it is clear that a nuclear weapon would produce catastrophic results, the chances of a terrorist group getting their hands on such a weapon are relatively low. Not low enough to ignore, but low enough for that not to be the main focus on cross border rail shipment inspections.

A much higher probability attack mode would be weaponizing one of the many cross border rail shipments of toxic inhalation hazard (TIH) chemicals. Routine shipments of chlorine, for example, cross both the Canadian and Mexican border. Current TSA regulations  pertaining to these shipments do not require security inspections {49 CFR 1580.107} of these railcars until the first time that they are interchanged in the US or until they are delivered.

I would like to suggest that this bill would be improved by including a requirement for reporting on the number of rail security-sensitive material shipments {§1580.100(b)} coming into the US and the number of those railcar that there is documentation available that equivalent inspections of the railcars as required in the US {§1580.107(a)(1)} have been conducted.

FRA Publishes PTC Amendments Final Rule

Yesterday the Federal Railroad Administration (FRA) published their PTC Amendments Final Rule in the Federal Register (77 FR 28285-28305). This rule eases some of the requirements for removing sections of rail line from the requirements to install positive train controls (PTC). These rules only pertain to track segments that “do not transport poison- or toxic-by-inhalation hazardous (PIH) materials traffic and are not used for intercity or commuter rail passenger transportation as of December 31, 2015” (77 FR 28285).

This rule is being issued in response to a Settlement Agreement reached in a suit by the Association of American Railroads (AAR). It eliminates two qualifying tests previously required to remove a line segment from PTC implementation. Those tests were based upon alternative route analysis and the residual risk analysis.

Complicates TIH Shipping Issues

As I noted in an earlier blog, it would seem that the removal of these two tests, particularly the alternative route analysis test, will further complicate the toxic inhalation hazard (TIH) routing issues that plague relations between TIH shippers and the railroads. This issue is addressed in the preamble to the rule with the FRA stating that “even where a railroad is able to reroute its PIH materials traffic in accordance with the PHMSA regulations, resulting in future PIH materials traffic needing to traverse a line segment that does not have a PTC system in order to travel from its source to its destination, FRA does not view such rerouting as a barrier to future PIH materials traffic” (77 FR 28292).

I also noted in a separate blog post that this rule could increase the number of rate setting disputes that the Surface Transportation Board will be required to hear. This rule acknowledges this potential problem; noting that “FRA recognizes that PTC system implementation may affect STB's review of rates” (77 FR 28292); but then ignores the issue in this rule.

Public Comments

This is a final rule and it is effective on July 13, 2012. Apparently anticipating objections to this rule (it is a tad bit controversial) the FRA has set a deadline for petitions for reconsideration on the same date. Those petitions will be published on the Federal eRulemaking Portal (www.regulations.gov; Docket # FRA-2011-0028). Public comments on those petitions are being solicited (they really do expect petitions apparently) need to be submitted via the same venue by August 27, 2012.

Oh, by the way, FRA is already considering the next set of amendments to the PTC rules. There is no mention of the topics to be covered in such amendments, just the notice that a new notice of proposed rulemaking (NPRM) is already in the works.

OMB Approves FRA Final Rule on PTC Amendments

Yesterday the Office of Management and Budget announced that it had approved the final rule from the Federal Railroad Administration (FRA) for amendments to the positive train control (PTC) implementation regulations. The approval was made ‘consistent with change’, suggesting that OMB had some relatively minor corrections that it wished to see made in the final rule.

FRA is moving ahead fairly quickly with this rule with the comment period on the NPRM ending just last October. I would expect to see this rule published in the Federal Register within the next week or so.

Readers might recall that I expressed some concerns about the effects of this on toxic inhalation hazard (TIH) chemical re-routing decisions and the potential for increasing the number of rate disputes concerning TIH chemicals filed with the Surface Transportation Board. It will be interesting to see if/how the FRA dealt with these issues in the upcoming rule.

STB TIH Advisory Committee Killed

Last August I wrote about [link added 6-5-11; 11:45] a move by the Surface Transportation Safety Board to establish an advisory committee, the Toxic by Inhalation Hazard Common Carrier Transportation Advisory Committee (TIHCCTAC), that would help the Board develop the information necessary to resolve a variety of disputes between TIH shippers and the carrying railroads. I hadn’t heard anything about the actions of this board so I went searching and found that the STB had killed the idea [link added 6-5-11; 11:45] back in April.

In its decision [link added 6-5-11; 11:45] canceling the formation of the TIHCCTAC, and closing out the open docket on the examination of the common carrier obligation to carry TIH chemicals, the STB cited fundamental disagreements on legal issues between the chemical producers and the railroads, as well as concerns about the anti-trust issues.

It was always a long shot that an Advisory Committee like the one proposed by the STB last summer would be able to get these two groups to sit down and iron out the serious differences between them. But, as the STB points out, the failure of this attempt leaves the board to decide these issues on case-by-case basis, like the two chlorine transportation disputes currently before the board.

TIH Transportation Dispute

There is a fundamental issue dividing these two groups. The position of the TIH producers and shippers is clear; they need the railroads to transport their products, including such chemicals as chlorine gas and anhydrous ammonia (the two largest volume toxic inhalation chemicals shipped in the United States). Not only is rail transportation generally cheaper than transporting their products by truck, but it is inherently safer for a variety of reasons.

The railroads don’t really want to carry these dangerous chemicals. Under current laws and regulations they bear sole financial responsibility (actually the railroads and their insurance carriers) for damages resulting from a release of the chemicals in transit. While the railroads have a good safety record transporting these chemicals, the Graniteville, SC accident (hardly a worst case scenario accident by any means) shows how expensive a TIH accident can become.

Railroads have little option when it comes to deciding whether or not to accept these chemicals for transportation. Under Federal laws they were given virtual monopolies for major portions of their routes. To protect shippers from monopolistic economics, the railroads are required to accept all properly offered shipments, commonly known as their common carrier obligation.

When it is suggested that the shippers should share in the financial responsibility for transit releases the chemical industry is quick to point out that the most of the catastrophic releases that do occur have been the result of problems caused by the railroads or their employees. They note that they still have legal responsibility for any releases caused by their failure to properly prepare the railcars for shipment.

Transportation Security

The conflict between shippers and railroads are further complicated by the issue of transportation security. Given the nature of the physical hazards associated with TIH chemicals these TIH railcars are an obvious potential terrorist target. Given the amount of TIH chemical transported in a single railcar they have the potential for generating a toxic cloud that can cover an extensive area in the event of a catastrophic release. It is obvious why this is just about the only mode of surface transportation that is significantly regulated for transportation security issues.

The most significant and burdensome security regulations concern points in transit where there is a change in possession of the railcars. The transitions between shipper and carrier, between carriers, and from carrier to receiver have well defined security responsibilities and procedures. Thus it is in the best interest of railroads to minimize these transitions. Additionally the railroads have informally agreed with the Transportation Security Administration (TSA) to minimize the time these railcars sit idle during transit.

With the way that rail lines have been designed and urban areas have grown up around node points in the rail network, it is inevitable that long distance transportation of TIH chemicals results in their routing through urban areas. This, in turn, causes the risk of attack on these railcars to increase as urban areas are a much more lucrative terrorist targets than open country.

Urban security and safety planners readily recognize the extent of the potential hazard associated with the transit of TIH chemicals. Unless the shipper or receiver of TIH railcars reside within their jurisdiction, there is no economic incentive or benefit to having these chemicals move through ones jurisdiction to compensate for the huge potential liability of a terrorist attack or even a transportation accident resulting in a catastrophic release of these chemicals that could cause hundreds of thousands of injuries and deaths.

An effort was made to regulate the routing of TIH chemical shipment. Because of the complex nature of the routing decision, the physical limitations associated with rail transportation, and political constraints, these routing regulations are so vague as to be practically meaningless beyond being a documentation exercise.

Case-by-Case Problem Resolution

It is in this environment that the Surface Transportation Board is called upon to resolve conflicts between TIH shippers and railroads. These conflicts generally boil down to railroads attempting to limit their physical or financial liability for TIH shipments while the shippers are trying to maximize their economic benefit from shipping the chemicals to various markets.

One can sympathize with the STB for not wanting to become involved in these convoluted conflicts. Both sides have utilized their substantial political power to ensure that Congress is unable to come down clearly on one-side or the other in these disputes. So they continue to fight at the margins in these disputes, trying to gain advantage before the STB.

As long as this remains essentially a safety issue, there will be no real resolution to the underlying problems. The safety record for both shippers and railroads in this area is really pretty impressive. But, as soon as this actually involves a real terrorist attack (successful or otherwise) on a TIH shipment in a major urban area, the political situation will drastically change and the third party to this dispute, the pubic put at risk, will be heard. When that occurs, the political knee-jerk reaction will be swift and uncomfortable in the extreme for both the railroads and the shippers.

The only one to benefit in that situation will be the Surface Transportation Board; they will then have much clearer guidance upon which to base their decisions.

New TIH Chemicals

I was working on a article this weekend for the next issue of the Journal of Hazmat Transportation about the public comments PHMSA had received on their HM-215K NPRM to harmonize the US Hazardous Materials Regulation (HMR) with the various modal international regulations. As a matter of course I had to review the NPRM closely, more closely than I had when it was published back in August.

As part of that review I noted that PHMSA is proposing to change the hazard classification of a number of existing chemicals to toxic inhalation hazard, Division 6.1.This proposed change is based on recent changes to the Revised 16th edition of the UN Model Regulations which was based upon a UN literature review. This would mean that those chemicals should be reviewed by DHS for possible inclusion in Appendix A as release toxic chemicals of interest (COI). This is a timely bit of information as I understand that DHS has a process underway to update Appendix A.

Three of the chemicals being changed in HM 215K are already on the Appendix A list:

• Tetranitromethane [Release Flammable COI]
• Phosphorous oxychloride [Release Toxic and Theft CW/CWP COI]
• Titanium tetrachloride [Release Toxic, Theft WME, Sabotage COI]

Two of the chemicals are actually already Division 6.1 TIH materials, but are having their relative risk elevated to PG I, the highest safety risk rating:

• Chloroacetonitrile
• Thiophosgene

The remaining chemicals are:

• Ethyl isocyanate [Flammable to TIH]
• Isobutyl isocyanate [Flammable to TIH]
• Isopropyl isocyanate [Flammable to TIH]
• Methacrylonitrile, stabilized [Flammable to TIH]
• Methoxymethyl isocyanate [Flammable to TIH]
• Sulfur chloride [Corrosive to TIH]

This change has not actually been made yet, as the public comment period for this NPRM was just completed last month. There were no comments received on the change of classification of these chemicals, so the change will almost certainly be included in the final rule when it is published, possibly as soon as later this year.

It is interesting to note that a number of these chemicals are industrial chemicals in use in a wide variety of industries. I would suspect that many of the facilities using these chemicals already use other COI that would have required submission of a Top Screen, but certainly not all of them.

Fire as a Weapon

Yesterday on my personal blog I discussed some of the process safety issues associated with the recent food processing facility fire in St. Charles, MN. That fire resulted in the evacuation of the town of almost 4,000 because of the fear of the possible imminent explosion of five anhydrous ammonia storage tanks in the facility. Not only was there concern about the potential release of 30,000 lbs of anhydrous ammonia, a toxic inhalation hazards (TIH) chemical, but the catastrophic failure of pressure tanks would have resulted in concussive blast effects and flying bits of metal. Aggressive action by local fire departments prevented the failure of the storage tanks. The pressure relief releases of anhydrous ammonia to the atmosphere were controlled to maintain safe off-site concentrations of the toxic gas. All in all it was a successful emergency response, the facility was essentially destroyed by the fire, but there were no serious injuries or deaths and no significant chemical exposures. While process safety people are interested in examining incidents like this for lessons to be learned, the chemical security community should also look at such incidents. Accidents are much more common than terrorist attacks (thank goodness) so we should take a look at serious accidents as surrogates for terrorist attacks. Fire as a Release Initiator Because of the physical characteristics of toxic inhalation hazard (TIH) chemicals, they are stored in pressure tanks. The construction of these tanks is such that they are much more resistant to explosions and fire arms than are most chemical storage tanks. This makes for a slightly easier to defend potential target. This is especially true when one considers that for maximum effect there must be a catastrophic breach of the storage tank to get the highest concentration toxic plume. Small holes make for slower releases and faster dispersion to sub-toxic levels. The ‘easiest’ way to get a catastrophic breach is to over-pressure the storage tank, quickly increase the pressure in the tank to more than its rated pressure capacity. The word ‘easiest’ is in quotes because chemical engineers are well aware of these potential hazards and spend a great deal of time designing the tank and its associated hardware and software systems to prevent over-pressure situations. Redundant temperature and pressure sensors, cooling systems, valve interlocks, high-level and high-pressure alarms and pressure relief systems are just some of the tools that are used to prevent over-pressure situations. There is one over-pressure scenario that makes chemical engineers cringe; the fire case. This is where there is ‘direct impingement’ of flames from a vigorous fire on the walls of the tank. The heat from the fire increases the head space pressure by increasing the temperature. With low boiling point chemicals (like TIH chemicals) the liquid in the tank quickly reaches the boiling point and it expands exponentially during conversion from liquid to gas. At the same time the heat from the flames on the metal walls of the tank will reduce the strength of the metal decreasing the pressure rating. In short order a very hot fire will result in the explosive failure of the pressure tank, effectively releasing the entire contents instantaneously. Given the rapid action involved, the astronomical increases in pressure, and the weakening of the vessel walls, there is no practical safety system that can prevent the catastrophic failure of the pressure tank in a fire case. The only solution is to keep combustible materials away from the storage tanks so that there can be no fire that will directly impinge on the walls of the tank. This is why TIH chemicals are most often stored in tanks remote from structures and other storage tanks. New Attack Scenario Security planners need to keep the above facts in mind when they look to provide effective security for large PIH storage tanks. They need to re-evaluate the normal chemical engineering effort to protect the tank from an over-pressure situation. They need to insure that there are no combustible materials stored in the vicinity of the tank, even on a temporary basis. Then they need to look at potential attack scenarios that would allow a terrorist to introduce combustible materials into the area around the tank. The simplest attack scenario would be for the terrorist to place a flammable liquid on the ground beneath the TIH storage tank and ignite it. This can be done by routing hoses or puncturing transfer lines (typically an insider attack). Another successful technique would be to cause the catastrophic failure of a nearby flammable (or even combustible) liquid storage tank and igniting that spill. A small explosive device that would be of little use against a pressure tank would be very effective against the typical sheet metal construction of most storage tanks. A similar attack on a properly placed portable storage tank or delivery truck would accomplish the same ends. For facilities that do not have the luxury of being able to keep their TIH storage tanks separate from other chemical storage, or must keep the tank in or near buildings that can burn, special precautions must be taken to avoid the affects of the fire case. Typical fire suppression systems are probably not adequate. A deluge system that keeps a high volume water flow across the entire surface of the tank for the duration of the fire is necessary. This does come with the attendant problem of stopping the potentially contaminated runoff from leaving the site. Again, learning from the mistakes or successes of others is the least expensive way to learn a lesson. A truly intelligent person looks at unrelated situations and extrapolates the lessons learned to their own situation. Protecting TIH storage tanks from fire case situations is not just a safety requirement. It should also be an objective of facility security officers.