Hazardous chemical shipments face rerouting

An interim final rule that will have important implications for railway and chemical interests was issued on April 16, by the Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration and the Transportation Security Administration issued (73 Fed. Reg. 20752).

New shipping requirements for chemicals
The interim final rule is intended to fulfill requirements under Section 1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007. Under the rule, the U.S. Department of Transportation (DOT) is requiring rail carriers to compile annual data on certain shipments of explosive, toxic by inhalation, and radioactive materials, use the data to analyze safety and security risks along rail routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. DOT also clarified rail carriers’ responsibility to address in their security plans issues related to en route storage and delays in transit. In addition, DOT adopted a new requirement for rail carriers to inspect placarded hazardous materials rail cars for signs of tampering or suspicious items, including improvised explosive devices (IED).

Key provisions for rail carriers in this new rule include:

• Those transporting certain explosives, poison inhalation hazard (PIH) materials, and radioactive materials must compile information and data on the commodities transported, including the routes over which these commodities are transported.
• Those transporting the specified hazardous materials must use the data they compile and relevant information from state, local and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route to analyze the safety and security risks for each route used and practicable alternative routes to the route used.
• Using these analyses, rail carriers must select the safest and most secure practicable route for the specified hazardous materials.
• In developing security plans, rail carriers must specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit.
• Those transporting the covered hazardous materials must notify consignees of any significant unplanned delays affecting the delivery of the hazardous material.
• They must work with shippers and consignees to minimize the time a rail car containing one of the specified hazardous materials is placed on track awaiting pick-up, delivery or transfer.
• They must conduct security visual inspections at ground level of rail cars containing hazardous materials to check for signs of tampering or the introduction of an IED.

The rule’s impact
The new rule is certain to have broad implications for many sectors. A few key implications include the need to carefully characterize certain materials. For example, rail carriers must obtain “information and data” from entities transporting certain materials. One category is PIH materials. It isn’t entirely clear what materials are considered PIH and what kind of information and data are required to satisfy the rule’s requirements.

Also, rail carriers shoulder a heavy burden in selecting the “safest and most secure practicable route” for certain hazardous materials. Reasonable people will disagree over what’s “safest,” “most secure,” and “practicable.” As with any selection process, trade-offs are involved and, almost certainly, rail carriers will need to carefully balance competing interests. Other important, but somewhat open-ended, requirements must be met by rail carriers who will rely upon information from their customers to discharge their legal burdens under the rule. How this information will be shared and assessed remains unclear, as are the financial implications of designing new routes. The day-to-day commercial implications of new rail delivery routes also remain to be seen. It’s reasonable to expect, however, that some dislocation and unpredictability will occur.

The rule was effective as of June 1. Readers should track this new measure.

Lynn Bergeson is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. Contact her at lbergeson@putman.net. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.