OUTLOOK ’09: US rail safety regulations spill into new year

13 January 2009 18:23  [Source: ICIS news]

By Brian Ford

Rail issues spill into the yearHOUSTON (ICIS news)--Several US rail security rules were finalised in 2008 but issues regarding rail safety and the transport of hazardous materials will spill into 2009, according to chemical distributors and producers.

Rail security rules from the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), Federal Railroad Administration (FRA) and the Department of Homeland Security’s Transportation Security Administration (TSA) were completed in 2008.

The Department of Transportation rule, which deals with the rail routing of hazardous materials in and around population centres, has run into some opposition by some municipalities and states.

Under the rule, US railroads began a six-month survey in July to gather cargo, route and risk factors data on existing shipments of toxic inhalant hazard (TIH) products, such as chlorine, ammonia, ethylene oxide, methyl bromide and sulphuric acid.

After the survey period concluded in December, railroads now have until 1 September 2009 to conduct risk and route assessments and use those assessments to begin sending hazmat cargoes along the lowest risk routes.

However, municipalities and states have complained that the Bush administration finalised a regulation that leaves the decision of which routes to take TIH products mainly in the hands of the railroads, pre-empting efforts at local control.

The National Conference of State Legislatures (NCSL) said it will call on the administration of President-elect Barack Obama to rescind the regulation.

“We would like to see it rescinded - we were not consulted,” said Susan Frederick, federal affairs council for the NCSL.

Cincinnati Vice Mayor David Crowley said his city should have more of a say in where and how hazardous materials are shipped, according to the Cincinnati Inquirer.

"If in fact we have hazardous material coming through Cincinnati when there is another way to do it, we'd like to know why that is happening," Crowley told the Cincinnati Inquirer.

The American Chemistry Council (ACC) favours the regulation, said Tom Schick, senior director for distribution for the council.

The railroads must look at 27 different criteria before determining which route is best for the transport of materials that are toxic inhalant hazards, he said.

“One thing that at everybody has learned [is that] this is good to have under DOT [Department of Transportation],” Schick said.

Officials with the Department of Transportation’s Federal Railroad Administration have said the rule does provide an opportunity for communities to give their views on potential routings.

The National Association of Chemical Distributors (NACD) also supports the rule, said association vice president of government affairs Jennifer Gibson. 

“This rule is appropriate because it takes safety issues into account as well as security issues,” Gibson said. “NACD has concerns about allowing local jurisdictions to require shipments to be re-routed to avoid certain areas.”

With rerouting, shipments would not travel along the most direct route, but on much longer routes, resulting in increased miles travelled and potential for incidents, Gibson said.

“It is also likely that the alternative routes would be through areas where the emergency responders do not have adequate training and equipment to handle major hazardous materials incidents,” Gibson noted.

“In addition, in some cases, shipments could be switched from rail to truck, which would increase the potential for loading, unloading, and highway incidents," she said. "It would also substantially raise costs for consumers without making people safer.”

Gibson said other rail-related issues from 2008 will spill over into 2009.

On Monday, the Department of Transportation announced a rule to improve the crashworthiness of  hazardous material tank cars.

The rule requires poisonous inhalation hazard (PIH) material tank cars to have better puncture resistance from a side impact with a combination of thicker inner shells where the hazardous material is held and/or thicker outer jackets, depending on the specific hazardous material being transported.

The rule is only an interim measure that is meant to stay in effect while the government and the chemicals industry work on more stringent standards that would be finalised in a few years.

Any new tank car built according to the interim standards will be allowed to stay in use for 20 years. The chemical industry had urged the Department of Transportation to “grandfather in” such tank cars so that they would have a useful economic life while tougher standards are put into effect.

Also, the chemicals and rail industries are awaiting a ruling from the Surface Transportation Board (STB) regarding the railroads’ common-carrier obligations to transport hazardous materials.

The railroads are concerned about their liability exposure when carrying poisonous inhalation hazard (PIH) materials and have asked the STB to relieve them of their common carrier obligation or allow them to shift some of their liability exposure to shippers.

The STB held hearings in 2008 on the railroads’ common carrier obligations.

The NACD urged the STB to retain the railroad’s common carrier obligation and not to shift liability to shippers.

NACD argued that if PIH cargoes were shifted to trucks, more personnel would be needed to safely load and unload the chemicals.

Moreover, fuel consumption would increase because more trucks would be required to transport the chemicals, the association said.  

The NACD’s top legislative priority for 2009 is to strengthen federal Department of Transportation pre-emption over state and municipal regulations in the area of hazardous materials transportation regulations, said Gibson.

The Hazardous Materials Transportation Act is due reauthorisation by Congress this year, and NACD hopes to use that statute revision as a springboard to bolster federal pre-emption.

NACD president Christopher Jahn said his organisation has already met with President-elect Obama’s transportation transition team to urge reauthorisation of the Hazardous Materials Transportation Act.

“Given both the safety and security issues surrounding the transportation of hazardous materials, a strong federal presence is needed to ensure uniformity of regulations that protect the public, facilitate compliance, and provide for the efficient movement of these essential materials in intrastate, interstate, and foreign commerce,” Gibson said.

“Statistically, the more time hazmat spends in transportation, or the more miles it must travel, the more likely an incident is to occur,” Gibson said. “Non-uniform regulations also make it difficult to train workers who perform their duties in multiple jurisdictions.”

The NACD also urged the Obama team to coordinate with the Transportation Security Administration [TSA] and others to agree on one uniform set of regulations to avoid duplicative and overlapping hazardous materials transportation regulations, particularly in the area of security, Jahn said.

Security regulations on rail movement of hazardous chemical cargoes took effect on 26 December, according to ACC's Schick.

The TSA regulations, which were two years in the making, require railroads to reply within five minutes to a federal query on location of any railcar carrying toxic materials.

The regulations also provide strict and detailed procedures that apply to chemical manufacturers, rail carriers and those receiving shipments regarding the chain of custody and monitoring of toxic cargoes.

A section of the regulations requiring railroads, shippers and receivers of hazardous cargoes to maintain a strict chain of custody for those shipments will become effective on 1 April, Schick said.

Finally, chemical manufacturers are hoping to see Congress address the issue of railroad exemptions to anti-monopoly restrictions.

Schick said the exemptions have led to a consolidation of power in the rail industry at the expense of “captive shippers” who are served by only one railroad.

Several regulatory hurdles exist that prevent shippers from choosing rail services even when there is more than one railroad in a community, Schick said.

“The barrier is you have to go through in an anti-trust [anti-monopoly] case to show that the rail carrier is abusing its monopoly power,” Schick said.

The ACC and other industry groups would like to change the regulations so that shippers would not have to show that there was abuse of monopoly power, Schick said.

Legislation in Congress to change the anti-monopoly regulations “have made a tremendous amount of progress,” Schick said. Key committees in the House and Senate last year passed bills that dealt with the issue, he said.

Schick said that the effort to get those changes in the law ran out of time with the 110th Congress last year but that legislation to adjust the anti-trust exemptions for railroads will be re-introduced in the new 111th Congress this year.

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By: Brian Ford
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