Hazardous materials are transported daily across the United States in huge volumes via rail. Before transport and at transfer points along the way, this dangerous cargo is often left sitting unguarded in factory lots and rail yards in major U.S. cities, creating a potential risk to homeland security. Would-be terrorists could, for example, attach homemade bombs to tank car hulls. The resulting explosions would release clouds of toxic gases and kill or sicken tens of thousands of people, depending on the amount of material released and the population density in the vicinity.
With that scenario in mind, federal agencies late last year issued a pair of new rules governing hazmat transport by rail. One rule, from the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), outlines a plan for risk-based hazmat routing. Another rule, from the Transportation Security Administration (TSA), dictates steps for ensuring both secure custody of rail cars when stationary and location-tracking of cars while in transit. The new rules’ functionality and effectiveness in reducing risk remain matters of debate as rail carriers set out to comply.
Both rules preempt all applicable state and local requirements—such as a law the District of Columbia passed to prohibit rail transport of hazardous cargo within 2.2 miles of the Capitol. That gives the railroad sector the uniform, nationwide regulation its members desire.
Both rules also cover rail transport of three types of hazmat: certain explosive materials, certain radioactive materials, and hazmat chemicals like chlorine that pose a toxic or poisonous inhalation hazard, which regulators refer to interchangeably as “TIH” or “PIH” chemicals. The two most common are chlorine and anhydrous ammonia, the latter a key ingredient in agricultural fertilizer.
All of the data generated specifically by both the PHMSA and TSA will be designated sensitive security information, meaning it will be restricted to stakeholders on a need-to-know basis. Local officials are included among stakeholders.
Unlike the TSA rule, which applies only to tank cars, PHMSA’s rule applies to specific “bulk” quantities of certain explosives, PIH chemicals, and radioactive materials, regardless of car type.
PHMSA’s rule requires that rail carriers catalog all data on shipment of the covered hazmats and conduct route analyses—essentially risk assessments—for each existing shipment route and potential alternative routes, considering 27 risk factors named by PHMSA. Those factors include volume to be transported, traffic density along the route, proximity to iconic targets and passenger rail, and the history of mishaps along the route.
PHMSA’s rule provides guidance for railroads in determining how to weight the different risk factors, and it offers two suggested approaches for risk assessment methodology.
The two methodologies are the Rail Corridor Risk Management Tool and the Rail Corridor Hazmat Response and Recovery Tool, both developed by the Freight Rail Security Program, a public-private initiative spurred by a major rail accident that occurred in Graniteville, South Carolina, in 2005. In that incident, a plume of toxic chlorine gas that was released when rail cars collided killed eight and sickened hundreds.
Concurrent to the route analyses, the railroads must consider potential risk mitigation measures along both primary and alternative routes and whether those measures would affect eventual route selection. In both the route analyses and consideration of mitigation measures, the rule requires that railroads consult directly with state and local authorities. To simplify that requirement, PHMSA suggests that railroads engage state, regional, and urban intelligence fusion centers as a single point of contact.
PHMSA initially proposed that railroads begin the route analysis process with data covering the last six months of 2008 and complete their assessments by September 1, 2009. In the final rule, PHMSA gives railroads that option, as well as the choice of completing an initial analysis incorporating data from all of 2008 by March 31, 2010.
Once assessments are complete, PHMSA mandates that for each segment of a railroad’s operating area, the carrier use the route that presents the least risk where “commercially practicable,” which means, “the route is economically viable given the economics of the commodity, route, and customer relationship,” the rule states.
The final rule mandates that railroads conduct annual reassessments, rebuffing an industry request that routes only require reassessment after significant physical or operational changes.
Critics of the route analysis approach, primarily state and city governments and environmental groups, had requested mandatory rerouting of the covered hazmats around the country’s 46 high-threat urban areas (HTUAs) designated by the U.S. Department of Homeland Security (DHS). Greenpeace, for example, requested mandatory rerouting “wherever technically feasible.”
Those critical of PHMSA’s approach take issue with the criteria of commercial practicability, which they say lets carriers use profit—not safety or security—as the sole guide for routing decisions.
“The test of practicability applies solely to the railroad’s economics; there is no attempt to balance the costs to the railroads against the potential costs to the nation in general,” wrote the California Public Utilities Commission in commenting on the rule when proposed. Attorneys for the city of Baltimore, Maryland, meanwhile wrote to PHMSA that the rule “will not be likely to yield any change from the status quo.”
In the final rule, PHMSA rejected these concerns and stuck with the position that railroads should fully document economic variables in their route analyses to demonstrate the validity of their routing decisions relative to cost.
The final analyses are not subject to an explicit acceptance or rejection process, however, route selection decisions will be incorporated into the existing inspection process, according to PHMSA. That inspection is carried out by PHMSA’s partner agency in DOT, the Federal Railroad Administration (FRA).
FRA inspectors can compel route changes, and the agency can issue civil penalties for noncompliance up to $10,000 per day, according to a separate FRA enforcement rule. Ultimately, how effective the rule is will be determined not by its language, say industry commentators, but by the strength of its enforcement through these FRA inspections.
In addition to route analysis, the PHMSA rule requires that rail carriers conduct a ground-level inspection of all covered hazmat cars prior to departure from the shipper or prior rail carrier, specifically to check for the presence of improvised explosive devices (IEDs). Further, shippers and carriers must work together to expedite shipping with the goal of reducing “standstill” times for cars that carry the covered substances.
PHMSA does not require that rail lines disclose to surrounding jurisdictions the hazmats they transport. Critics say that this adds to the risk for residents and first responders.
In its rule, PHMSA recommends that railroads disclose to jurisdictions along their routes the 25 hazmats most commonly carried through their area. Currently, when firefighters respond to the scene of a railroad accident, they rely on DOT-mandated, diamond-shaped placards to alert them to the presence of hazardous materials. For direction on the threats posed by the chemicals, the U.S. chemical industry operates a call center for first responders 24 hours a day, seven days a week, called CHEMTREC.